On April 11, 2018, GWIKS hosted the Sixth Soh Jaipil Circle featuring Ms. Angela Kim, who gave her presentation titled, “International Legal Issues for a Unified Korea: Protection of Third Party Rights Under Pre-Existing Bilateral Treaties.” Ms. Kim is currently a Visiting Scholar at GWIKS and a PhD candidate in Law at the Chinese University of Hong Kong. She received her LLM from the George Washington University in 2015 and her Bachelor of Law from Handong Global University in 2014.
In her presentation, Ms. Kim discussed international law rules on bilateral treaty interpretation and state succession as related to a hypothetical future scenario of a unified Korea. Firstly, she spoke in depth about the law of state succession and highlighted 3 different waves of succession that occurred in recent history: (1) the era of decolonization (1950-74); (2) the era of de-sovietization (1990-96); and (3) various cases in the 21st century (e.g. South Sudan and Kosovo). Succession of states can be either partial or universal, with partial succession encompassing secession, cession, and the creation of newly independent states, and universal succession entailing dissolution and unification. For the Korean case, Ms. Kim specifically highlighted unification as the type of state succession, which can be further divided into (1) the merger of South and North Korea into an entirely new state; and (2) the incorporation of one into the other.
Secondly, Ms. Kim spoke about the legal foundation and the sources of international law, specifically highlighting Article 38(1) of the Statute of the International Court of Justice, which denotes (1) conventions, (2) customs, (3) general principles of law present in many states, and (4) judicial teachings as the underlying foundation of international law.
Thirdly, she delved into how all of this applies to the Korean context. As remains customary for all successions, in the case of a unified Korea, any bilateral treaties that were signed with the DPRK or ROK regarding borders would remain unaffected for third parties. Additionally, treaties of a localized nature that deal with the use of territory (e.g. such as rights to fisheries) would similarly remain unaffected. Other treaties such as political or bilateral investment treaties would be evaluated on a case-by-case basis.
Were unification to occur, it would most likely be the incorporation of the North into the South’s existing legal personality. Ms. Kim noted the German case as a precedent of incorporation that could be followed; furthermore, she detailed three general principles of law that would enable the protection of third party rights under pre-existing bilateral treaties with either of the two Koreas. The first was pacta sunt servanda, which stands as a basic principle necessitating that agreements be kept. Existing agreements are based on good faith and are in force, and a unified Korea could not unilaterally terminate these treaties. The second was rebus sic stantibus, or “things thus standing,” whereby unification itself could not be considered a fundamental change in circumstance that justifies unified Korea’s unilateral termination of or withdrawal from a pre-existing treaty. Lastly, the third principle Ms. Kim noted was pacta tertiis, which means that “agreements do not harm third parties.” For any pre-existing treaty to be nullified, unified Korea would have to obtain the consent of the respective third parties.
Ms. Kim concluded her presentation with a reiteration of her research findings and how these findings directly apply to the future of existing bilateral treaties with the two Koreas. Attendees had an opportunity to ask questions, provide feedback, and engage on a deeper level regarding her topic of interest.
Written by Bomie Lee