Korea must learn from West Germany

Song In-ho
The author is a professor of law at Handong Global University and head of the Handong Institute for Peace and Reconciliation.

Various analyses have been made since North Korea revealed its intention to fundamentally change its policy toward the South by defining inter-Korean relations as a relationship between “two hostile states,” rather than “the same peoples” as before. The North has already demolished its Monument to the Three Charters of National Reunification. This policy change is widely viewed as an attempt to promote stronger internal bonding amid deepening economic difficulties, establish a foundation for power succession, strengthen its control of the Korean Peninsula amid drastic changes in the international order and secure nuclear weapons.

The shift of North Korea is similar to that of East Germany during the German division. East Germany interpreted the 1972 Basic Treaty as a permanent division of the country and removed clauses related to reunification through a constitutional amendment in 1974. East Germany asserted its own statehood distinct from West Germany, declaring that Germans were divided into a “socialist people” and a “capitalist people.”

However, even after the signing of the Basic Treaty, West Germany took the position that East Germany was not a state under international law. The Federal Constitutional Court of West Germany maintained that West Germany’s constitutional obligation to protect East German residents under the Basic Law for the Federal Republic of Germany continued although the Basic Treaty prohibited one side from interfering in the other’s internal affairs. West Germany’s firm stance is credited for helping to hasten German’s reunification.

The normative effects of the Constitution of South Korea have extend to the North per Article 3 since its establishment in 1948. Article 4 orients unification to “liberal democratic basic order” and “peace.” Based on a comprehensive interpretation of those constitutional provisions, the Supreme Court has ruled that inter-Korean relations are not relations between two states, and that the North’s legal status is a dual one of “anti-state entity” and “partner in dialogue and cooperation for reunification.”

And yet, some people in South Korea point to the need to treat inter-Korean relations as between two states. While the purpose of promoting peace between the two Koreas is understandable, we need to carefully examine whether this paradigm will really bring peace to the peninsula.

First, as the “two states theory” is premised on the abolition or reduction of the territorial provisions in our Constitution, it will most likely lead to the abolition of the ones regarding reunification. The idea of special relations — that the two Koreas are not separate states but counterparts that will one day reunify — has served a positive function by helping to enhance mutual respect, reduce tensions and contribute to peace.

If South Korea abandons those special relations just because the North did, the two will really become two hostile states, and all prospects of peaceful reunification will disappear.

As policy change is not easy even for the North Korean people to accept, we must take a careful approach to changing the status quo. Shifting inter-Korean relations to those of statehood can be discussed once the North has adopted a system based on a liberal democratic order.

We must look at all inter-Korean issues, including reunification, from the perspective of the universal development of civilization, including a respect for the dignity of humanity and the promotion of freedom and human rights. This is the constitutional duty specified in our Constitution, and it is what the North Korean people will want. We need to systematically overhaul our policies on reunification while keeping an eye on the intentions and repercussions of the North’s change. We must implant the dream of building a community — one in which the two Koreas can share universal values of respect and human dignity — in future generations.

Translation by the Korea JoongAng Daily staff.