Establishment of a Peace Regime on the Korean Peninsula: Definition, Process, and Cooperation

and Jootaek Lee
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Abstract

Depending on how we define a peace regime, we can determine whether we have reached a peace regime on the Korean peninsula, or what and how we have to pursue to reach a peace regime. A new definition of a regime should not be too broad to admit the current balance of powers based on hegemonies and states’ patterns of behaviors, or too restrictive and formal to codify as a multi-national treaty; a simple peace treaty cannot cover everything a peace regime needs to have and reflect the complicated process of peace building, cooperation and tension-reduction. In this paper, I will attempt to find the most-realistic definition for a peace regime to provide an ultimate peace on the Korean peninsula. Further, I will think about how to reach the newly defined peace regime on the Korean peninsula and the obstacles to overcome to reach this peace regime, including: (1) Denuclearization; and (2) How a peace regime can be transnationally supported and peacefully digested and incorporated into the domestic level processes and norms, especially considering that reaching a regime reflecting national interests is a daunting task. Lastly, I will conclude with recommendations for states surrounding the Korean peninsula.

1 Introduction

The Korean War (‘The War’) did not legally end. While the fighting stopped in 1953, the War had been on the stage of truce under the 1953 Armistice Agreement, and no formal agreement on ending the War and creating peace was adopted. On 27 April 2018 President Moon Jaein of the Republic of Korea (‘ROK’) and Chairman Kim Jongun of the State Affairs Commission of the Democratic People’s Republic of Korea (‘DPRK’) made a ‘Peace Declaration,’ politically ending the war on the Korean Peninsula and starting a new era of peace. 1 This political agreement between the two Koreas politically ended the Korean War, and the two Koreas agreed to establish a permanent and solid peace regime on the Korean Peninsula. The Peace Declaration continued the legacy of the 15 June 2000 South-North Joint Declaration 2 (‘2000 Joint Declaration’) which had been halted since February 2008 when conservative President Lee Myungbak was inaugurated. Regardless of the Peace Declaration, however, a peace regime on the Korean Peninsula did not seem to be established yet since the great powers surrounding the Korean Peninsula still have strong national interests and would like to keep involved in Korean issues, including denuclearization. Thus, the ultimate goal to reach a permanent peace regime can be reached through resuming the Six Party Talks (‘SPT’) among the United States, China, Russia, Japan, and the two Koreas, and resuming the Four Party Talks among the United States, China, and the two Koreas. 3 President Kim Daejung on 24 August 2000 said that a peace regime on the Korean peninsula needs a ‘complete consensus’ among the two Koreas, the United States, and China. 4

What is the permanent peace regime we are seeking to reach on the Korean peninsula? Did we already reach it? What does the peace regime concept that allegedly originated in the 2000 Joint Declaration try to achieve on the Korean peninsula? What definition of a peace regime will ultimately provide a permanent peace and security to the Korean Peninsula? Do we have to be idealistic or realistic?

The DPRK has traditionally sought bilateral relations with other countries, including China and the former USSR, as there is no regional organization in Northeast Asia. The DPRK did not actively participate in global governance 5 until it joined the United Nations in 1991, using it as a primary forum to express its anti-hegemonic ideas while engaging itself with small countries. 6 Using this forum, the DPRK has been making efforts to protect its territorial sovereignty and political integrity, while supporting their rights to survival and development. 7 Speaking of which, the Four Party Talks and Six Party Talks involving the DPRK were treated as a discussion forum for a new peace treaty and denuclearization of the DPRK and a step toward a peace regime. The forums can be treated even a peace regime on the Korean Peninsula, reflecting the multilateralism as suggested by John Ruggie to cooperate on the basis of generalized principles of conduct. 8 Western-centric or American-centric hegemonies, and the DPRK’s anti-hegemonic extreme approach, however, work as obstacles to create this peaceful regime. Furthermore, the forums cannot be fitted into the ‘true global governance,’ from John Stuart Mill to Anthony Giddens, which will lead to a regime which has a cosmopolitan society in a globalized market and communication. 9 The civil society of the DPRK was structurally restricted and unable to be politically engaged. 10 A successful peace regime should be more pluralistically and constantly connected and communicated among the constituent states in terms of political, economic, business, culture and social realms in order to comprehensively prevent a war or a nuclear launch.

As such, depending on how we define a peace regime, we can determine whether we have reached a peace regime on the Korean peninsula, or what and how we have to pursue to reach a peace regime. A new definition of a regime should not be too broad to admit the current balance of powers based on hegemonies and states’ patterns of behaviors, or too restrictive and formal to codify as a multi-national treaty; a simple peace treaty cannot cover everything a peace regime needs to have and reflect the complicated process of peace building, cooperation and tension-reduction.

In this paper, I will attempt to find the most-realistic definition for a peace regime to provide an ultimate peace on the Korean peninsula. Further, I will think about how to reach the newly defined peace regime on the Korean peninsula and the obstacles to overcome to reach this peace regime, including: (1) Denuclearization; and (2) How a peace regime can be transnationally supported and peacefully digested and incorporated into the domestic level processes and norms, especially considering that reaching a regime reflecting national interests is a daunting task. Lastly, I will conclude with recommendations for states surrounding the Korean peninsula in terms of ‘strength, organization form, scope, and allocation mode.’ 11

2 Attempt to define a peace regime

2.1 Traditional broad meaning of an international regime

International regime has emerged and became a major focus of empirical research and international theories by scholars since the 1980s. 12 A regime is distinguished from mere cooperation or institutionalization. 13 A regime was broadly defined as patterned regular behavior. 14 Under this broad definition, there seems to be a peace regime between the two Koreas without a war since the 1953 Korean Armistice Agreement.

Article 3 of the 2018 Peace Declaration states that ‘South and North Korea will actively cooperate to establish a permanent and solid Peace regime on the Korean peninsula.’ Previously, the 2005 SPT Joint Statement also used the ‘permanent’ modifier to a peace regime, which implies an institutionalization of the peace regime. Is the ‘permanent’ modifier intended to require an institutionalization which is covered by the broad definition of a regime based on states’ patterns of behavior? John Ruggie assumed that ‘international behavior is institutionalized,’ when states seemed to be regulated by international organizations. 15 The institution is ‘the conjunction of convergent expectations and patterns of behavior or practice.’ 16 There was the Four Party Talks, which was established in 1997 among US, China and the Two Koreas. If we focus more on process and patterns of behaviors based on convergent expectations through an institutionalized form for the meaning of institutionalization, the institutionalization of a peace regime seemed to have already been established during the 1997–1999 period. Therefore, we can conclude that there was actually permanent institutionalization with the aid of a peace regime. Since the 2000 Joint Declaration, the two Koreas communicated and cooperated more than before, which can be considered as a step in reaching a peace regime. In 2007, President Roh Moohyun and Chairman Kim Jongil produced a joint declaration (‘2007 Joint Declaration’) to negotiate further for a multi-lateral agreement to end the Korean War through three or four party talks. The 2018 Peace Declaration politically ended the Korean War between the two Koreas. All these communications and political agreements may be part of the patterns of behavior and process as a regime which can help the Korean peninsula to reach peace; thus, the first steps to establish a peace regime have been reached and institutionalized per the traditional broad definition.

This broad descriptive approach on a regime, based on patterned behaviors, however, was abandoned due to its risk of tautology and difficulty to proactively anticipate behaviors. 17 Furthermore, patterns of behavior and efforts to establish a peace regime on the Korean peninsula lost their consistency depending on the changes in internal and external political situations. When the conservative Presidents were inaugurated in the ROK, the peace talks retreated. The September 11 attacks changed the US policy toward the DPRK. The 2006 DPRK nuclear test lead to the United Nations sanctions; connecting the peace and end of war issue to the denuclearization issue through another forum, the Six Party Talks, makes this peace process more difficult. While the Four Party Talks provided a forum through six plenary sessions to discuss peace on the Korean peninsula, the parties failed to reach a consensus on agenda, and there were no convergent expectations for this talks. Simply providing a communication forum for a peaceful resolution and denuclearization cannot guarantee a peace on the Korean peninsula, especially when communication is frequently stopped. Despite that a regime requires institutionalization, attempts to create an institution for a permanent conversation for a peace talks failed to continue for last twenty years.

2.2 Restrictive approach to a peace regime

Since the 1953 Armistice Agreement did not end the war in a legal sense, a legal ending such as the 1951 San Francisco Peace Treaty with Japan may be necessary, but is this true even after more than 65 years has passed since the actual end of the War, as well as the end of the Cold War? Is the 2018 political Peace Declaration between the two Koreas enough to end the war and begin a new era?

Tae-Hwan Kawk and Seung-Ho Joo suggest that we need a permanent peace regime by concluding a peace treaty. 18 Kawk and Joo are assuming that there still exists a Cold War on the Korean Peninsula, and a war can start at any time. 19 While the 2018 Peace Declaration clearly ended the ‘Cold War relic of longstanding division and confrontation,’ we still should think about whether equalizing a permanent peace regime with a peace treaty is appropriate.

Under the most restrictive regime definition, a peace regime on the Korean peninsula can be reached simply by a single multi-lateral treaty, such as a Korean Peninsula Peace Treaty, or multiple bilateral treaties, including the 1991 Agreement on Reconciliation, Non-aggression and Exchanges and Cooperation between the South and the North (‘1991 Inter-Korean Basic Agreement 20’). It can be suggested that (1) international peace principles and dispute resolution methods can be incorporated into a peace treaty as norms and rules; and (2) the Four Party Talks can be merged into a single multilateral peace treaty as a decision-making procedure. The 1991 Inter-Korean Basic Agreement is a good example to follow and is reaffirmed by the 2018 Peace Declaration. The Agreement included the principle of non-interference (Art 2), 21 prohibition of use of force and non-aggression principles (Art 9), 22 and the principle of peaceful settlement of disputes (Art 10). 23 The Agreement also planned to establish a South-North Political Committee for high-level talks and implementation of the accords on reconciliation (Art 8), 24 a South-North Joint Military Commission to implement and guarantee non-aggression (Art 12), 25 a telephone hotline to prevent accidental armed clashes and escalation (Art 13), 26 and a South-North Military Committee to remove military confrontation (Art 14). 27

The 1991 Inter-Korean Basic Agreement, however, seemed to lose its normative value. Not only is the 1991 Inter-Korean Basic Agreement an executive agreement which was adopted without an approval from the National Assembly of the ROK, but this treaty is also bilateral between the two Koreas, not reflecting other surrounding states’ interests. 28 Furthermore, the efforts to establish a peace regime with a single treaty is also idealistic. It also was not successfully implemented.

Furthermore, equalizing a regime with multilateral agreements is subject to criticism for a formalism. 29 Multilateral agreements are too restrictive to cover everything a peace regime needs to have and reflect the complicated process of peace building, cooperation and tension-reduction. It is true that the goals of the South-North Exchanges and Cooperation (Chapter III) were successfully enumerated: to engage in economic exchanges and cooperation (Art 15), to perform exchanges and cooperation in science and technology, education, literature and the arts, health, sports, environment, and publishing and journalism (Art 16), to promote free intra-Korean travel and contacts (Art 17), to permit free correspondence, reunions and visits among divided families (Art 18), to reconnect railroads and roads and to open South-North sea and air transport routes (Art 19), to build South-North postal and telecommunications services (Art 20), to cooperate in the international arena in economic, social and cultural fields (Art 21), to establish joint commissions to implement accords on exchanges and cooperation (Art 22), and to establish a South-North Exchanges and Cooperation Commission (Art 23). 30 In the 1990s right after the demise of the Cold War, however, the two Koreas were not ready to cooperate and exchange due to a prolonged period of mutual distrust, animosity, a lack of mutual cooperation, and conflicting ideologies. 31 The DPRK withdrew itself from the Nuclear Non-proliferation (‘NPT’) Convention in 1993. The DPRK leader, Kim Il-sung passed away in 1994. The submarine infiltrations by the DPRK happened in the East Sea of the ROK in 1996 and 1998, and between the two Koreas there was an armed battle in the Yellow Sea in 1999. In the 1990s, the DPRK kept its position for its insistence on the withdrawal of US forces from the Korean Peninsula, seeking bilateral talks with only US The DPRK was also suffering from its economic deterioration, spread of famine, and international isolation. It was not ready to open to the outside world, adopting a market-oriented economic policy based on China’s model, and did not actively accept foreign investment until the late 90s. 32 The ROK kept its hardline policy toward the DPRK until the 1998 Sunshine Policy adopted by the new president Kim Dae-jung.

Even if it is true that peace treaties were typically concluded to finish wars with an effort to create a peaceful order, peace treaties are legal and political concepts and do not comprehensively guarantee a peace regime and further a ‘permanent’ peace. Concluding a peace treaty after a war is not also supported by international custom. Concluding a peace treaty with the DPRK can also be interpreted as recognizing the DPRK as a nation, which is contrary to the current Korean Constitution That will lead to a turmoil of interpretation; Article 3 of the ROK Constitution will be violated if the ROK tries to recognize the DPRK as a nation. 33 The peace treaty is also linked to the issue of withdrawal of US forces from the Korean peninsula and further, from the Japanese peninsula since the ROK may not need the military support of the US for the possible attacks by the DPRK.

It is also true that it is unrealistic to make a new peace treaty among the original parties to the Korean Armistice Agreement – the United Nations, 34 the DPRK, and China, 35 where the ROK was not a party. It is also unrealistic to make a treaty among the US, China 36 and the Two Koreas, who have real interests on the Korean Peninsula, because of the denuclearization issue, and more than 65 years has passed since the actual Korean War ended. Trying to make a multi-lateral treaty – especially when China and the US have not been actively involved to create a treaty and suggest the terms of a peace treaty with their real interests on the Korean Peninsula different – is to deny the current interdependency the DPRK has with other states and peaceful relations among the states surrounding the Korean peninsula. Since September 1991, both Koreas have been a member of the United Nations; therefore, the legal efforts to maintain peace on the Korean peninsula should be discussed under the umbrella of the United Nations Charter.

2.3 Transnational approach to a peace regime

Considering the current interdependency the DPRK has with other states in terms of economy, development, and culture, an idealistic definition of a regime assumes a cosmopolitan society in a globalized market, and effective communication among constituents of states as expressed from John Stuart Mill to Anthony Giddens. 37 A peace reigme should be more pluralistically and constantly connected among these parties in terms of politics, economics, business, culture and social realm in order to comprehensively deter a war or a nuclear launch.

Kwak and Joo suggests a definition of ‘Korean peace regime building’ may be stated as:

[T]he process by which the two Korea states at the inter-Korean level, and the two Koreas and the four powers – the United States, China, Japan, and Russia – at the international level cooperate to establish a Korean unification-oriented peace regime on the Korean peninsula through confidence building measures, tension reduction, national reconciliation, international cooperation, and the replacement of the KAA with a Korean peninsula peace treaty. 38

Even though they do not directly define a peace regime, they implicated non-surface level transnational interconnection and process as well as a surface level cooperation. This sentiment seemed to be reflected the 2000 Joint Declaration that states in paragraph four:

The South and the North have agreed to consolidate mutual trust by promoting balanced development of the national economy through economic cooperation and by stimulating cooperation and exchanges in civic, cultural, sports, health, environmental and all other fields. 39

Stephen D Krasner defines a regime as ‘sets of implicit or explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given area of international relations.’ 40 A peace regime can be implicit or explicit principles, norms, rules, and decision-making procedures by which actors are expected to keep peace in a region. There should be consensus on principles in advance, and they need to be settled down into norms and rules for actions. 41 This is close to cognitive theories where dynamics and processes of constituent states are explained by ideology, values, beliefs, and knowledge of constituent states, and actors keep learning; the cognitive theories will explain the substantive content of the regime principles, norms, and rules. 42 Cognitivists suggest that the processes that help to identify their identities and purposes are formed by ‘the normative and causal beliefs that decision-makers hold and that, consequently, changes in belief systems can trigger changes in policy.’ 43

However, we should consider the difficulty of consistently defining norms and principles. In the cognitive theories, it is hard to foresee when a regime will be created, stabilized, and changed. 44 Furthermore, even if we are seeking to adopt and apply the Krasner’s definition for common expectations among states into the Korean peninsula, there are still hurdles. The actors’ expectations are hard to merge into one concrete set of principles and norms when each party seeks different national interests and has different groups of national populations and cultures. In reality, so-called regimes have been surviving without a consensus of expectations. John Ruggies’ ‘embedded liberalism’ suggests that a regime will endure as long as there is some economic efficiency in a regime. 45 Just as the oil regime between 1945 and 1970 and the Suez Crisis, where the American interests and the power to back them controlled the outcome, it is highly possible that a peace regime on the Korean Peninsula can sustain, being controlled only by major powers.

While stability and order cannot be included in the definition because a regime can lead to stability or instability, 46 it is true that the difficulty of defining the norms and principles for a peace regime can lead to instability or disorder. 47 Deviating from Krasner’s definition and reflecting the existing balance of powers, a regime can sustain. However, deviating from Krasner’s definition, we cannot guarantee a successful ‘permanent’ peace regime which allows to influence and control each state’s behavior. The idea, based on the theory of hegemonic stability, cannot enhance confidence building and tension reduction by simply building a loosely defined peace regime controlled only by major powers without considering the two Koreas’ interests. A regime based on the theory of hegemonic stability fails to explain the dynamics and processes in a regime and will, ‘continually revert in an ad hoc way to domestic political variables.’ 48 On the other hand, while John Ruggie’s embedded liberalism 49 must be working well for a regime for economic cooperation, it will not play well for a political regime because a little deviation from a regime can escalate into a nuclear war on the Korean peninsula.

Thus, considering both the Krasner’s definition and its criticism, I would like to suggest that a transnational legal process theory should be added to the definition of a peace regime. In his transnational legal process theory, 50 Harold Koh explains that states obey international law because of interest, identity, interaction, and internationalism. 51 States obey it not because they believe there is a hierarchy in international society, but because their interests will be harmed, and they will be involved in frictions that prevent their ongoing transnational processes with other states if they do not follow the normative principles set among the states. 52 Most states’ actions seem to be run by game theory and will be predicted to be cooperative based on prisoners’ dilemma game theory and non-zero-sum game theory. 53 In the end, they will internalize international law into their domestic legal system. 54

3 Recommendations: A new definition and obstacles to reach a permanent peace regime

I would like to suggest a new definition of a peace regime which will be realistically working for the establishment of a peace regime on the Korean peninsula. A peace regime on the Korean Peninsula should be sets of implicit or explicit principles and norms around which political, economic, social and cultural values of constituent states – the two Koreas, China and US – transnationally and interdependently converge in order to keep peace on the Korean Peninsula. I eliminated rules and dispute resolution methods from Krasner’s definition since it is too specific and formal. Also, instead of using abstract expectations in the definition, I would like to use values which deter the constituent states from relying on armed conflict to protect themselves due to their interdependency with the other constituent states. And I also believe that the regime will be transnationally incorporated into the national legal systems of each constituent state. The 1991 Inter-Korean Basic Agreement and the following declarations agreed on the principles of non-aggression and non-interference and exchanges and cooperation between the two Koreas. The Four Party Talks can be resumed to make a common declaration to extend these principles among the constituent states reflecting the current interdependency among the four countries. This declaration would have a normative value with opinio juris given by the current interdependency, and breaking it and any armed conflict would lead to enormous harm to the states.

Then, how to reach the newly defined peace regime on the Korean peninsula and what are the obstacles to reach this peace regime? I will consider the denuclearization issue on the Korean Peninsula; and whether a new peace regime will be transnationally supported, and peacefully digested and incorporated back into the domestic level processes and norms of the constituent states, considering that reaching a regime reflecting national interests is a daunting task.

3.1 Denuclearization

Here, I will consider whether denuclearization is required to achieve the peace regime. Kwak and Joo suggest that the Korea’s peace and prosperity depends on a peaceful resolution of the denuclearization issue, which is acting as an obstacle to building a peace regime. 55 The peaceful resolution of the issue can be achieved through the Six Party Talks. After the first meeting in August, 2003, the SPT successfully concluded three important international agreements to denuclearize the DPRK on 19 September 2005, 13 February 2007, and 3 October 2007. In paragraph four of the 2005 Joint Statement, the parties also used the term, ‘a permanent peace regime,’ which will be further negotiated at a separate forum as follows:

The Six Parties committed to joint efforts for lasting peace and stability in Northeast Asia. The directly related parties will negotiate a permanent peace regime on the Korean Peninsula at an appropriate separate forum. The Six Parties agreed to explore ways and means for promoting security cooperation in Northeast Asia. 56

In the early 1990s, the two Koreas agreed to the 1991 Inter-Korean Basic Agreement and the 1992 Joint Declaration of the Denuclearization of the Korean Peninsula separately. Until the 2007 Joint Declaration, the nuclear issue was dealt with by the Six Party Talks. The two Koreas separated the peace regime building issue from the denuclearization issue. However, the new 2018 Peace Declaration included both issues into one declaration. It seems that the establishment of a peace regime cannot be achieved without resolving the denuclearization on the Korean Peninsula.

Just as Krasner’s definition has a problem linking converged expectations to the denuclearization issue, linking the denuclearization issue into a peace regime will be a daunting task to the surrounding states. They should also consider merging the current Western-orientated Nuclear Non-proliferation (‘NPT’) system with the current situation, considering the DPRK withdrawal from the NPT treaty on 10 January 2003, and a series of the UN Security Council Sanctions since the DPRK’s first nuclear test in 2006. Since the denuclearization of the DPRK issue should be resolved under the umbrella of general international law and the UN self-defense peace mechanism, I believe that this nuclear issue should not be linked to the establishment of a peace regime on the Korean peninsula.

3.2 Transnational support and national interests

Recent regime theories assume that states are unified and rational actors. 57 Are the surrounding states of Korea rational actors? Is the DPRK a rational actor? The DPRK is considered to be a rational actor because it is seeking for independently interdependency. 58 The DPRK is participating in many intergovernmental organizations and global governance enough to express its anti-hegemonic ideas, and its economy and financial systems are intertwined with many other countries. The DPRK is also physically connected with other countries through air and water ways. NGOs are influencing the DPRK. While the DPRK is making its best effort to secure its independence and security be developing nuclear weapons, it is also seeking international support for development in many ways, including its economy, telecommunication, energy, food, and healthcare system. 59

The real danger for a peace regime on the Korean Peninsula comes from the fact that a peace regime can be understood from the position of the rationalist or utilitarian approach to international regime. 60 The rationalists, including neoliberal and realist theorists, consider states as ‘atomic actors and deny […] the existence of an international society.’ 61 They ignore actors perceptions or causal beliefs, and, as a result, transnational interdependence. While Keohane – who represents the rationalist idea – refers to the Prisoners’ Dilemma to provide a reason for cooperation, 62 the rationalists mainly look at the ‘external structural conditions […] consciously neglecting the impact that the internal (domestic) attributes of the units may have on the choices of actors.’ 63 Per my new definition on the peace regime on the Korean Peninsula, the transnational legal process theory reflects the globalized reality in this contemporary world. Agreements and declarations between the two Koreas reflect this position, emphasizing exchanges and cooperation in the social areas and humanitarian cooperation. Without understanding international political, cultural, economic and social values, as well as differing belief systems, a peace regime cannot be reached. For example, the ROK has failed to build a national consensus and bipartisan support for its engagement policy toward the DPRK, which has led Presidents to formulate convergent expectations toward the peace regime and the unification issue. 64 The DPRK also tried to make a consensus internally when Kim Jung-un tried to kill opponents to his position to normalize the DPRK’s diplomatic relations with the surrounding countries. 65

4 Conclusion

A peace regime on the Korean Peninsula should be defined as sets of implicit or explicit principles and norms around which political, economic, social and cultural values of constituent states – the two Koreas, China and US – transnationally and interdependently converge in order to keep peace on the Korean Peninsula. While the external national interests of four states are different, the four countries are internally connected in terms of economic, social and cultural values. Their internal values and beliefs are codified into their norms, which affect the relations of the four countries and peace on the Korean Peninsula. The denuclearization issue should be the one of many external political issues handled separately by the Six Party Talks under the umbrella of the current international law. Instead of seeking a peace treaty, the current transnational interdependency among the four countries should be respected, which will help to reach substantial peace where they can reduce the mutual distrust and tension among the states. Considering the unification of two Koreas may be a long process of constructive simmilarizing, constant communication and exchanging of the values and beliefs among the states should not be halted.

Footnotes

Article note

This paper was presented at the Korean Security and International Law Conference at the US Naval War College on 26 February 2019. The author thanks James Britt for his assistance.

Footnotes

1

The preamble says, ‘The two leaders solemnly declared […] there will be no more war on the Korean Peninsula and thus a new era of peace has begun. […] the firm commitment to bring a swift end to the cold War relic of longstanding division and confrontation. […]’ Read: Full Declaration of North and South Korean summit (27 April 2018) <https://perma.cc/7FG6-ZNMH> accessed 15 January 2020.

2

South-North Joint Declaration (15 June 2000) <https://www.ncnk.org/resources/publications/South-North_Joint_Dec_2000.pdf> accessed 15 January 2020.

3

The Six Party Talks was established in 2003 to denuclearize the DPRK. The Four Party Talks was proposed in 1996 to replace the 1953 Armistice Agreement with a peace treaty; six plenary sessions were held between 1997 and 1999, but the four parties failed to agree on agenda and did not deal with the denuclearization issue.

4

Tae-Hwan Kwak and Seugn-Ho Joo, ‘The Korean Peace Process: Problems and Prospects after the Summit’ (2002) 165 (2) World Affairs 79, 87 (quoting Lee Chang-sup, ‘Kim Proposes Inter-Korean Peace Accord’ Korea Times [Seoul, 25 August 2000]).

5

James Rosenau defines global governance as activities backed by shared goals that may or may not derive from legal and formally prescribed responsibilities and that do not necessarily rely on police powers to overcome defiance and attain compliance. James N Rosenau and Rrnst Otto Czempiel, Governance without Government: Order and Change in World Politics (CUP 1992).

6

Virginie Grzelczyk, North Korea’s New Diplomacy (Palgrave Macmillan 2018) 189–196.

7

ibid 193.

8

ibid 189.

9

Grzelczyk (n 6) 189 (citing John Stuart Mill and GW Smith, John Stuart Mill’s Social and Political Thought: Critical Assessment [Routledge 1998]; Anthony Giddens, The Consequences of Modernity [Stanford University Press 1990]).

10

ibid.

11

Stephan Haggard and Beth A Simmons, ‘Theories of International Regimes’ (1987) 41(3) Int Organ 491, 492.

12

See Stephen D Krasner, ‘Structural Causes and Regime Consequences: Regimes as Intervening Variables’ in Stephen D Krasner (ed), International Regime (Cornell University Press 1983); Andreas Hascenclerver, Peter Mayer and Volker Rittberger, Theories of International Regime (CUP 1997); Haggard and Simmons (n 11) 491–517; Regime Theory and International Relations (Volker Rittberger ed, Clarendon Press 2002); Ernest B Hass, ‘Why Collaborate? Issue-Linkage and International Regimes’ (1980) 32(3) World Politics 357–405.

13

Haggard and Simmons (n 11) 495–96.

14

ibid 493.

15

Joh G Ruggie, International Responses to Technology: Concepts and Trends, 29 Int Organ 559 (1975).

16

Oran Young, Compliance and Public Authority: A Theory with International Applications (Taylor and Francis 2011) 16.

17

ibid.

18

Kwak and Joo (eds), Peace Regime Building on the Korean Peninsula and Northeast Asian Security Cooperation (Routledge 2010) 1.

19

ibid.

20

Agreement on Reconciliation, Non-aggression and Exchanges and Cooperation between the South and the North, DPRK-ROK (13 December 1991) <https://peacemaker.un.org/korea-reconciliation-nonaggression91> accessed 15 January 2020.

21

ibid art 2.

22

ibid art 9.

23

ibid art 10.

24

ibid art 8.

25

ibid art 12.

26

ibid art 13.

27

ibid art 14.

28

It was an inter-Korea approach without being followed by international approach for establishing a peace regime. See Kwak and Joo (n 4) 79.

29

Haggard and Simmons (n 11) 495.

30

ibid arts 15–23.

31

Kwak and Joo (n 4) 79.

32

See Grzelczyk (n 6) 145–85.

33

The DPRK is considered to have a double status. Article 3 of the Constitution states that ‘[t]he territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands.’ Constitution of the Republic of Korea, Art 3 (ROK). Article 4 states that ‘[t]he 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.’ Constitution of the Republic of Korea, Art 4 (ROK). The Supreme Court decided that the DPRK is a belligerent under Art 3; on the other hand, it also admits the DPRK is a partner of the unification process under Art 4. 2000Do2536 (2000); 203do758 (2008) (ROK).

34

Per the UN General Assembly Resolution 3390B, the United Nations Command, the original party to the 1953 Armistice Agreement was recommended to be dissolved.

35

Whether the Chinese People’s Volunteer Army, which signed the 1953 Armistice Agreement, is representing the current People’s Republic of China is an issue to discuss.

36

Whether China should be included in the peace talks is an issue to discuss.

37

Grzelczyk (n 6) 189 (citing John Stuart Mill and GW Smith, John Stuart Mill’s Social and Political Thought: Critical Assessment [Routledge 1998]; Giddens [n 9]).

38

Kwak and Joo (eds) (n 18) 3.

39

South-North Joint Declaration (15 June 2000) <https://www.ncnk.org/resources/publications/South-North_Joint_Dec_2000.pdf> accessed 15 January 2020.

40

Krasner (n 12) 2.

41

Haggard and Simmons (n 11) 493.

42

ibid 509–10.

43

Hasenclever (n 12) 136.

44

See Haggard and Simmons (n 11) 510.

45

ibid.

46

ibid 496.

47

ibid 494.

48

ibid 500–504.

49

ibid 510.

50

Harold H Koh, ‘Transnational Legal Process’ in Siegfried Wiessner (ed), General Theory of International Law (Brill 2017) 237. The theory was initiated by Phillip Jessup, Abram Chayes, Tom Ehrlich, Andreas Lowenfeld, Myres McDougal, Harold Lasswell, and Michael Reisman.

51

ibid 256–263.

52

See ibid.

53

See ibid 257.

54

ibid 261.

55

Haggard and Simmons (n 11) 510.

56

US Department of State, ‘Six Party Talks, Beijing, China’ (19 September 2005) <https://2009-2017.state.gov/p/eap/regional/c15455.htm> accessed 15 January 2020.

57

Haggard and Simmons (n 11) 492.

58

Grzelczyk (n 6) 206.

59

ibid.

60

See Hasenclever (n 12) 23–82.

61

ibid 25.

62

ibid 30–31.

63

ibid 28–29.

64

Kwak and Joo (n 4) 89.

65

Alexander Vuving, ‘What Kim Jong Un Really Wants, and How America Should Respond’ Yahoo News (18 February 2019) <https://news.yahoo.com/kim-jong-un-really-wants-194300369.html> accessed 20 January 2020.

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The Vienna Journal on International Constitutional Law (ICL Journal) endorses an approach towards a coherent understanding of International Constitutional Law, thus preparing the ground for novel answers to the challenges of a changing global legal framework. Advised by a body of distinguished jurists, the Journal publishes high-standard peer-reviewed contributions by scholars and legal professionals from around the globe.

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