President Moon Jae-in’s controversial ratification of inter-Korean agreements he signed with North Korean leader Kim Jong-un in Pyongyang last month highlights the legal and political complexities of dealing with the North. It also manifests how deep polarization in this society is.
The controversy began Tuesday last week when Moon ratified the Pyongyang Declaration and inter-Korean military agreement. The declaration calls for denuclearization of the peninsula and broader inter-Korean exchanges and cooperation, and the military agreement outlines measures to end hostilities between the two sides.
Cheong Wa Dae insisted the president is able to ratify the inter-Korean accords since parliamentary consent is not necessary for them because the Panmunjom Declaration reached at April’s first summit between Moon and Kim -- a sort of parent agreement for the two following accords -- is going through the parliamentary ratification process. This makes little sense.
Most of all, it is unreasonable for the government to enforce what it says are subordinate agreements to the Panmunjom Declaration while the National Assembly has yet to ratify it. It is like putting some enforcement decrees into effect before the law above is legislated and proclaimed.
Moreover, the Pyongyang Declaration requires the National Assembly’s consent because it would entail the spending of taxpayers’ money. Article 60 of the Constitution says the National Assembly has the right to ratify treaties pertaining to mutual assistance or mutual security and those that incur financial obligation.
Nevertheless, the Moon government insists the Pyongyang Declaration is designed to carry out April’s Panmunjom Declaration, and parliamentary ratification of the broader agreement would cover all subsidiary agreements. Then the government should have waited for the parliamentary endorsement of the parent declaration.
The ratification of the Pyongyang Declaration and inter-Korean military agreement exposed another aspect of self-contradiction on the part of the government.
Officials said the two agreements did not require parliamentary approval because North Korea is not a state under the South Korean law. Their argument is based on Article 3, which stipulates “the territory of the Republic of Korea shall consist of the Korean Peninsula and its adjacent islands.”
Then Moon and the officials need to answer this question: Why did the government ask the National Assembly to ratify the Panmunjom Declaration? The legality or sovereignty of the northern part of the peninsula is not an issue that can be determined by political expediency.
The episode involving Moon’s autobiography also illustrates the dilemma his government is in. In “Destiny,” which he published in 2011, Moon wrote that agreements made by the leaders of the two Koreas should be regarded as treaties between states.
Indeed, what kind of legal status North Korea should have in the South Korean legal code is a complicated issue. A majority of South Koreans advocate the current Constitution that regards North Korea as a part of South Korea only because contrary stipulation may mean acceptance of perpetual national division.
In reality, however, it is difficult to deny North Korea’s statehood. North Korea is already a full member of the United Nations and few in the world believe it actually belongs to the South. The question about the statehood of North Korea may not be solved until the two Koreas achieve unity.
Amid all these controversies, the Moon government published the Pyongyang Declaration in the government gazette Monday in the final step for putting it into effect. But the presidential action faces a judiciary review as the opposition Liberty Korea Party filed in the same day a court injunction to suspend its enforcement.
It is not the first time the government and opposition have engaged in legal battles over domestic political issues or North Korean affairs. But the latest case shows how difficult it is to forge national consensus or bipartisan cooperation on North Korea policy.