Reforming North Korea: law, politics, and the market economy.

• Author: Zook, Darren C.

Since the economic crisis and famine years of the mid-1990s, there has been intermittent speculation that North Korea has reached a point where it will have to thoroughly reform its entire operational structure or face inevitable collapse. While most of this speculation has focused on political or economic pressures to induce the necessary measures of domestic reform, very little has focused on the murky maneuverings of North Korea's legal system. While North Korea's legal system is often dismissed as being a mere facade for a dictatorial state, and while the cantankerous ire of North Korea toward the general principles of international law is often cited as evidence for its status as a rogue state, the reality is that North Korea's legal system does have substantive elements that are essential to the proper functioning of the state and to the process of reform. The North Korean state has in fact engaged in several initiatives of legal reform, both in its domestic and international practice, since the mid-1990s. It is argued here that no program of political or economic reform can succeed without a simultaneous restructuring of the North Korean legal system, and that current initiatives toward legal reform in North Korea, in their domestic and international context, are insufficiently integrated to support a successful and sustainable political or economic transition. In other words, legal reform, far more than political or economic reform, may be the most important factor in ensuring North Korea's domestic stability and international reintegration.

1. INTRODUCTION II. THE NORTH KOREAN LEGAL SYSTEM A. Constitutional Law 1. The Constitution of 1948 2. The Constitution of 1972 3. The Constitution of 1992 4. The Constitution of 1998 5. The Constitution of 2009 B. The structure of the legal system 1. The emergence of exceptional law C. Unresolved elements in the context of reform III. THE REGIMES OF EXCEPTIONAL LAW IN THE DPRK A. Common Exceptional Law in the DPRK B. Case Study: Foreign Investment Law (1992) C. General Elements of DPRK Common Exceptional Law D. Special Exceptional Law in the DPRK 1. Raseon 2. Sinuiju 3. Gaeseong 4. Geumgangsan E. Assessing exceptional law IV. CONCLUSION I. INTRODUCTION

   Early in the morning of 11 July 2008, Pak Wang-ja went for a walk around the Geumgangsan (1) resort area on the eastern coast of North Korea. (2) Pak, a 53-year old South Korean housewife from Seoul, had no reason to be concerned, since the grounds of the Geumgangsan resort fell under the security provisions negotiated with the Democratic People's Republic of Korea (DPRK--otherwise known as North Korea) by the Hyundai Asan corporation, the South Korean conglomerate that built and still manages the resort area. (3) Geumgangsan is one of the very few places where South Koreans can experience a glimpse--albeit carefully controlled--of life in North Korea, though it is not North Korea proper but a localized South Korean enclave within the territory of North Korea, constructed by a peculiar arrangement with the North Korean government. The tourist project of Geumgangsan was meant to be mutually beneficial: to bring in much-needed revenue for the North, to provide a unique attraction to South Koreans who long for a glimpse of the long cut-off and isolated North, and to provide a symbolic link between the two Koreas that could establish trust and good will. (4) But Pak Wang-ja's morning walk on that day in July ultimately became a tragedy that revealed just how legally peculiar and politically fragile this whole arrangement really was: after Pak pushed aside some barbed wire and crossed through a poorly marked boundary between resort property and North Korean territory, she was shot in the back and killed by a North Korean guard. (5)

   Details of the incident were murky--there were questions of whether the North Korean guards gave sufficient warning before shooting, whether Pak knew she had crossed the boundary, and whether Pak was shot fleeing guards or heading back to safety. (6) What seemed at first like a straightforward case of mutual cooperation, where officials from North and South could conduct a joint investigation of the incident, quickly turned into a convoluted legal dispute over proper jurisdiction and investigative procedure. North Korean officials argued that the incident took place on North Korean soil and therefore South Korean officials were precluded from conducting an investigation; they also rejected requests for a cooperative investigation with shared jurisdiction based on the passive personality claim that the victim of the shooting was a South Korean citizen. (7) What had seemed like a clearly demarcated legal and political enclave established for the construction and management of the resort at Geumgangsan became an opaque and ill-defined parcel of land whose status was dependent more on political whim and circumstance than on any guiding legal principle.

   Though this was the first incident of its kind at the Geumgangsan resort, it was not the first time that poorly defined legal and political boundaries led to Korean border incidents with tragic results. In June 2002, a naval skirmish in the West Sea at the disputed Northern Limit Line (NLL) between North and South Korea left five South Korean sailors dead and some 22 wounded, along with unconfirmed (and unconfirmable) reports of casualties from the North. (8) But there is a more fundamental issue lurking beneath all of this; the incident at Geumgangsan and the skirmish in the West Sea are just two specific examples of a general problem that affects every aspect of North Korean politics and its relations with the outside world. The architecture of North Korea's legal system, based as it is more on political expediency than legal consistency, can no longer address or support the needs of the state or the tasks for which it was designed. No amount of incremental internal reform or international assistance is likely to bring about meaningful political and economic reform unless it is accompanied by a serious and comprehensive reconstruction of the North Korean legal system. The stakes are as risky as they are high; some of the questions that persist in the murky space of North Korean law include pinning down the legal relationship of newly emergent markets to the state, of these markets to one another, of domestic markets to international markets and free trade zones, and determining whether North Korea has institutional "good faith" to carry out its international legal obligations. Everything from economic liberalization to stable regime transition is in some way dependent on meaningful North Korean legal reform, and yet, there has been little or no comprehensive examination by policy analysts or legal scholars of what this would entail. North Korea's legal system might appear to be a mere legal facade for an unapologetically authoritarian regime, but in fact there is not only real potential but also a real need for substantive legal reform if North Korea is to maintain any hope of enduring political stability and vibrant economic development.

2. THE NORTH KOREAN LEGAL SYSTEM

   It is necessary to preface any study of North Korea with some sort of caveat that the entire project is fraught with difficulty, uncertainty, and empirical peril. But there is good reason for such a disclaimer: much of the North Korean system of governance and its accompanying institutional arrangements, including the legal system, resists a clear and definitive mapping. This is in many ways intentional and structural, a sort of obfuscation by design, as the control of privileged information is one of the crucial factors that allow those in power to retain their power. Nevertheless, it is possible to make sense of the North Korean system; part of the process of legal reform in North Korea has been enhanced transparency of the law, making the information somewhat more reliable than in other areas of North Korean politics. Since so little is written about North Korean law, and since the process of legal reform is best elucidated in the context of discerning antecedent practice from transitional plan, it would be useful to outline the foundational elements of the North Korean legal system.

   1. Constitutional Law

      As with everything else in North Korea, even something as straightforward as constitution and the law it generates requires a profound shift in perspective. North Korea has enacted five constitutions--in 1948, 1972, 1992, 1998, and 2009. It is possible to read each of them as indirect archives of the transformation of the relationship between law and political power in the North Korean state. (9) Each successive constitution is a textual map of legal reform, a document produced by the realization of North Korean political elites and party faithfuls that the requirements of political action had become incongruous with the power and authority vested in available legal instruments.

      In socialist legal systems--in spite of its peculiarities, the North Korean legal system draws heavily from socialist legal tradition--a constitution's political status and functions are quite different from the status and functions of a constitution in a democratic political system. In democratic systems, the constitution constructs the legal foundation for the institutions of the state; for the most part, political policy and practice must work within the legal parameters established by the constitution and its generative institutions to be legitimate. In socialist systems, the constitution works in concert with other legal instruments to facilitate the implementation of political policy and practice by providing after-the-fact legitimization of party directives. Such a socialist constitution is only valid if it works within the political parameters established by the ruling party, and through it, the state itself. In more succinct words, in a democratic system, politics follows the...