—Yoomin Won, Associate Professor, Seoul National University School of Law
[Editor’s Note: This is one of our ICONnect columns. For more information on our 2025 columnists, see here.]
In December 2023, the North Korean leader Kim Jong-un officially announced that the two Koreas are “two hostile states,” effectively renouncing unification. North Korea’s declaration of South Korea as another “state”—a hostile one—was striking to many South Koreans. Yet aren’t they already two different states? To most of the world, this announcement might sound like stating the obvious. Only South and North Korea see it differently: they do not recognize each other as separate states but as partners in the pursuit of reunification. This creates an interestingly complex legal fiction. The newly amended 2024 North Korean Constitution has been reported to call South Korea a hostile state, though not publicly available yet. Kim’s new stance could mean a major shift in inter-Korean relations.
A Brief History of Division
Korean history dates back to 2333 BC. The peninsula remained as a united country since the first unification by Silla in the 7th century AD, and the second unification by Goryeo in 936. Chosun dynasty ruled the whole country until the colonization by Japan in 1910. With Japan’s surrender in 1945, Koreans anticipated national restoration. Instead, they received an unexpected arrangement that would reshape their destiny: dividing the country into two parts.
The Allied powers established a trusteeship in Korea from 1945 to 1948, dividing Korea along the 38th parallel: the south by the United States military and the north by the counterpart of the Soviet Union. This temporary measure, intended to last until general elections in 1948, became the foundation of the permanent division. The South and North separately established their own governments in 1948. In 1950 the Korean war broke out, which started as a civil war aimed at occupying the other half, and became international with UN troops of 16 countries and China joining. The 1953 armistice agreement established a new border following a zigzag pattern of the final front lines, creating the division that persists today.
Dual Identities: Internationally States, Domestically Partners
It was not until 1991 that the dual relationship between the two Koreas was established: internationally two states, but domestically partners. Internationally, both Koreas achieved simultaneous UN membership in September 1991. Since 1949, South Korea attempted several times to join the club only to fail due to Soviet vetoes. South and North Korea had tried to become the only UN member state representing “Korea,” excluding each other. This time, they finally agreed to join together but separately, making sure that the UN membership does not mean state recognition towards each other.
Internally, in December the same year, the two leaders signed an agreement commonly known as “South-North Basic Agreement“.[1] It recognized their relations, “as not being a relationship between states, constitute a special interim relationship stemming from the process towards reunification.” This established a curious dual relationship: recognized as two states internationally, while maintaining they are partners in reunification domestically.
North Korea in South Korean Law: Foe and Friend
This created an interesting dual status of North Korea within the South Korean legal system: an enemy and a partner at the same time. As an enemy, North Korea is an illegal entity that occupies the northern territory. Article 3 of the South Korean Constitution declares the national territory as encompassing the entire Korean peninsula and its adjacent islands, including the northern region. The National Security Act criminalizes activities related to “anti-government organization,” which is the North Korean government or pro-North Korea entities. South Korean defense papers regularly designate North Korea as an “enemy.”
As a partner, North Korea is whom South Korea should cooperate with. Article 4 of the South Korean Constitution mandates that it shall seek unification. South Korea maintains a dedicated Ministry of Unification. The Inter-Korean Relations Act reaffirms the 1991 South-North Basic Agreement by defining inter-Korean relations as a special, non-state relationship formed in the process of pursuing unification.[2] Courts interpret constitutional provisions to recognize North Korea as a dialogue and cooperation partner in the reunification process.[3]
Citizenship Beyond Borders
Another interesting consequence of this dual legal framework concerns citizenship. Article 3 of the South Korean Constitution defines that its territory reaches up to the borders with China and Russia. The South Korean Nationality Act gives Korean citizenship, in principle, to a person whose father or mother is a national of the Republic of Korea (South Korea) at the time of the person’s birth. Both the Constitution and Nationality Act do not clearly discuss the status of people from North Korea.
By legal interpretation and in practice, North Korean defectors are considered to have South Korean citizenship.[4] When they defect from North Korea and express their willingness to accept South Korean jurisdiction, they receive citizenship. After occasional examination as to whether the willingness is genuine or not—meaning whether they are spies—they can get assistance for their protection and settlement in South Korea, as citizens, not as foreigners. This is why interesting legal issues can arise when the North Korean prisoners of war in Ukraine wish to go to South Korea.
The Reality Behind the Legal Fiction
In every practical sense, there are two separate and very different states on the Korean peninsula. South with Samsung and K-pop, and North with a strongman leader and nuclear weapons. The South Korean government has effective control over the south, and North Korea the north. Legally and officially, they are—or were—in a special temporary relationship with a common goal of reunification, denying state-to-state relationship. North Korea’s new “hostile two states” policy, in this sense, breaks the common ground between the two Koreas. It, however, didn’t seem to bring much change in reality.
Suggested citation: Yoomin Won, North Korea in South Korean Eyes: Enemy or Reunification Partner? Int’l J. Const. L. Blog, Aug. 6, 2025, at: http://www.iconnectblog.com/north-korea-in-south-korean-eyes-enemy-or-reunification-partner/
[1] This agreement cannot be a “treaty” because this is not an agreement between “states”. The Constitutional Court of Korea announced that this agreement merely has a character of a joint statement or non-binding agreement. The Supreme Court of Korea also affirmed that it does not have a legal binding force and cannot be a treaty between states. Constitutional Court of Korea, 16 Jan 1997, 92HunBa6; Supreme Court of Korea, 23 July 1999, 98Du14525.
[2] Article 3 of the Act on the Development of Inter-Korean Relations.
[3] Constitutional Court of Korea, 29 July 1993, 92Hun-Ba48. See also Supreme Court of Korea, 17 Apr 2008, 2003Do758.
[4] Supreme Court of Korea, 12 Nov 1996, 96Nu1221.
Comments