Tag Archive | "South Korea"


Critical Analysis: North and South Korea’s Talks Working Towards Conflict Resolution

by Samantha Peaslee, Denver Journal of International Law and Policy

October 19, 2014

In mid-October 2014, North and South Korea resumed talks at Panmunjom.  While the two countries are technically still at war, as they never entered into a truce after the Korean War in 1953.  The two countries have proceeded through various discussions and attempts at conflict resolution throughout the years with varying levels of success.  The most recent talks occurred in February 2015, when the two states reached an agreement that relatives from either country to meet each other for the first time since the Korean War.  Both sides also agreed to tone down the harshness of their rhetoric when speaking about each other.  In August 2015, South Korea proposed a new round of talks, hoping for another reunion visit to take place in early September for Chuseok (Korean Thanksgiving).  On October 4, 2015, high-ranking North Korean officials came for the closing ceremony of the Asian Games and agreed to resume formal high-level talks.  While the talks looked momentarily like they would not proceed after North Korea fired at balloons carrying propaganda against North Korean leader Kim Jong-un, the talks proceeded at Panmunjom anyway.


Flag near the village of Panmunjom in the demilitarized zone between North Korea and South Korea.
Photo Credit: Reuters/Lee Jae-Won.

Each set of talks between North and South Korea has increasingly important implications for international law.  North Korea still does not officially recognize South Korea as an independent state, but as a part of North Korea.  However, each time it treats South Korea as a state, the North weakens the strength of its claims over the South.  While North Korea continues to act as if the two are not separate states in some ways (such as refusing to recognize the Northern Limit Line), engaging in high-level talks suggests that it does in fact recognize South Korea’s statehood.  This could be a very important step for reconciliation between the two states.

These talks could also be interesting to the legal world because they may lead to talks about all conflict disputes and uses of force between the two states over the last several years.  Note that neither North nor South Korea has accepted compulsory jurisdiction to the International Court of Justice.  Therefore, any dispute resolution must come from the two states themselves or allies acting as intermediaries.  The subject matter of this level of talks may range from the recent border altercations to another reunion between citizens to the lifting of the May 24 Measure, a trade sanction imposed on North Korea by South Korea in 2010.  These are topics that could fall within the purview of the ICJ to mediate, but the states have instead decided to work out the consequences and remedies amongst themselves.

While history says that jumping to conclusions about the result of these talks would be unwise, as each past set of talks has failed to prevent incidents between the two states, one should not believe that these talks are useless.  For each step towards reconciliation, whether that means obeying borders or lifting sanctions, the two countries fall more in line with recognized international law.  For a dispute as long as the one between these two states, that is no small feat.

Samantha Peaslee is a 3L law student at the University of Denver Sturm College of Law and Senior Managing Editor for the Denver Journal of International Law and Policy.

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Discussion: A Path to Peace in North Korea

Yesterday, the University of Denver Sturm College of Law hosted Eric Sirotkin, a widely regarded peacebuilder and mediator who has worked to resolve conflict in the Koreas and South Africa (to name just a few).  Earlier this year, he presented a Peace Conference hosted by the North Korean government.  He created a twelve-step plan to end the conflict in the Korean Peninsula.

Monument to the Three Charters for National Reunification
(Business Insider)

North Korea is a much more modern that I would have expected – Pyongyang is a city full of modern skyrises, stadiums, and a recently constructed reunification tower.  Both North and South Korea have unification ministers, whose job is to work toward ending the war and reunifying the country.  However, years of conflict have affected consciousness of the governments.  Indeed, a mindset of war and conflict pervades the dialogue on this issue.  Military parades and shows of force – think the parade of weaponry – are still frequent occurrences in the North.

There remain obstacles to peace in the Koreas.  In 1953, the Armistice ending the military conflict required future meetings to build a peace and restore the countries.  However, the first meeting was tainted by the Cold War, and nothing came.  Militarism, on both sides, pervades the conflict.  While the North Korean military is well knows, the United States recently shifted military assets to Asia.  South Korea hosts many US military bases, and if war breaks out, the United States is in charge of the military operation.  South Korea’s fear of state subversion also plays a role.  South Korea has a strong national security law that makes it extremely difficult for South Koreans to talk openly about the Korean conflict.

But the future is bright.  South Korea will elect a new government this year.  The United States’ election, as well, can be a bright point as people with more positive views on North Korea – such as Bill Richardson or John Kerry – come into influence.  North Korea’s new leader, Kim Jong Un, is fresh blood and is not necessarily beholden to the past.  These new generation of leaders hopefully can transcend beyond the racism and recognize the self-reliance which inheres in Korean society.  With this in mind, Mr. Sirotkin created his peace proposal.

Communication is the foundation for bringing this peace.  Listening to the dialogue, and understanding the context for the dialogue, is key.  This can involve some uncomfortable truths.  The South Korean Truth and Reconciliation uncovered some unsavory actions perpetuated by the United States and South Korea during the war before it was shut down by the South Korean government.  The trick is to move beyond the “bad” North Korean and the “good” South Korea to negotiate while understanding the other side’s position.  To this effect, the West needs to shift its negotiation structure to recognize the cultural underpinnings of North Korea and address that state as a co-equal state on the international playing field.  Jimmy Carter, a frequent visitor to North Korea, talks about North Korea’s desire to trade nuclear weapons for a peace treaty.  The point is, the US needs to open its dialogue and treat NorthKorea as coequal state on the international field.

This comments are my impression of Eric Sirotkin’s presentation, but do not necessarily reflect his views.

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President Barack Obama

Lessons to Heed in the Wake of the Free Trade Trilogy

President Barack Obama is currently intensifying talks with Colombia, Panama and South Korea regarding proposed free trade agreements (FTA) inherited from the Bush Administration. The President hopes to submit all three agreements to Congress by the end of the year.  Worrisome is that similar provisions granting substantial investor rights as those written in precursor agreements, such as NAFTA and CAFTA, are included within each of the prospective pacts, which threaten the public good of the international community.

Within the last 15 years, there has been an explosion of bilateral and multilateral FTAs around the world.  Proponents of trade agreements argue that such pacts are valuable tools for increasing foreign investment, promoting fair competition and encouraging transparent regulations.  However, in order to encourage investments by foreign multinational corporations in signatory nations, FTAs incorporate investor protection provisions that defy public interest policy by bypassing domestic regulations.  Specific provisions included in FTAs that are particularly damaging to the public interest include: (1) provisions that provide for “expropriation and compensation” to investors when the investor feels that the host nation has breached its duties under the FTA; and (2) provisions that contain relaxed regulations regarding nationality requirements for investors wishing to bring arbitration claims against signatory nations.

President Barack Obama

President Barack Obama

A good illustration of the risks posed by state-investor enforcement terms is apparent in Pac Rim Cayman LLC v. Republic of El Salvador, which is currently pending before a CAFTA arbitration panel.  The Canadian mining company, Pacific Rim, sought to establish “El Dorado”, a gold mine in El Salvador’s largest watershed, the Rio Lempa, which flows not only through El Salvador but also through the neighboring countries of Guatemala and Honduras.  Pacific Rim planned to use appalling amounts of water and cyanide to extract gold from the ore it plans to excavate.

Within the most densely populated country in Latin America, over 96% of the surface water in El Salvador is contaminated and 1.5 million people, a quarter of the population, lack access to clean water.  The threat of gold processing chemicals leaking into the Rio Lempa would affect thousands that rely on the Rio Lempa for clean water and farming to meet their basic needs.  Staunch local activism against the exploitation of Pacific Rim’s proposed gold mine prompted the Salvadoran Government to investigate and eventually refuse to issue an exploitation permit that would allow the establishment of “El Dorado”.

In 2008, the Salvadoran President, Elias Antonio Saca, announced that El Salvador would not grant any exploitation permits until the government modernized current mining laws, in addition to critically analyzing the environmental impact of proposed mines.  That same year, Pacific Rim ceased exploratory drilling, and the Canadian-based mining company changed its course of action.  Aware that El Salvador became a signatory nation to CAFTA, Pacific Rim chose to reincorporate one of its subsidiaries, Pac Rim Cayman LLC, to Nevada.  With a subsidiary now incorporated within the United States, Pacific Rim seized the opportunity to forum shop, thus permitting the corporation to file suit against El Salvador under CAFTA’s investor-state enforcement provisions.  Specifically, Pac Rim is claiming that by denying the mining permit, El Salvador expropriated any future earnings and therefore demanded hundreds of millions in compensation for possible losses in future earnings.

Thus, a legitimate fear surrounds the notion that if investor claims succeed, such as those brought by Pac Rim against El Salvador, signatory governments of FTAs with strong investor-state enforcement terms will avoid implementing new laws that promote the public interest in fear of owing millions to foreign corporations through arbitration claims brought under the FTA.  The risk, therefore, is the long term, detrimental impact that investor rights have when incorporated into FTAs, preventing domestic policy change that aim to protect the ecosystem or further public health and human rights initiatives. With the price of gold now soaring, numerous foreign mining investors have filed for expropriation permits in El Salvador alone.  Irrespective of the arbitration panel’s decision in Pacific Rim Cayman, El Salvador, one of the hemisphere’s poorest nations, will be forced to pay millions to defend itself against investor to uphold policy that protects indigenous rights, public health and the environment.

Congress cannot simply ignore the negative impact investor-state enforcement terms have once applied in international tribunals.  The United States – Korea FTA creates an additional component that is relevant to this discourse.  Unlike U.S. pacts with developing nations, South Korea, like the U.S., is a major capital exporter.  South Korea has 85 multinational companies with over 250 establishments operating in the United States.  Lori Wallach, director of Public Citizen’s Global Trade Watch, stated that under the proposed U.S.-Korea FTA, “Korean firms operating [in the U.S.] would get new rights to skirt [the U.S.] court system and laws and use foreign tribunals to demand taxpayer compensation for laws that they do not like, just like Pac Rim is doing to El Salvador.”

The United States must take note of the lessons exposed through previously arbitrated and currently pending cases that elucidate the danger of increased investor-rights in FTAs before it ratifies future trade agreements that defy the greater public good.  Congress must implement changes to state-investor enforcement terms to ensure that FTAs comport with the minimum standards of international customary law.

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University of Denver Sturm College of Law

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