Main Legal Issues Existing in Korean Consitutional Articles on Unification: Especially Concerning
Logic and Amendment Issue
Jhe, Seong-Ho*
There has been Territory Clause (Article 3) in the South Korean constitution since its enactment in 1948. But its existence itself cannot be an obstacle of the unification of South and North Korea in that the article declares territorial range of the Republic of Korea (ROK).
If actual norm power of Territory clause is to be recognized, ROK's nationalities can be approved for North Korean people easily and properly. Also it has a strong ground that South Korea should intervene in the protection of human rights and freedom of North Korean defectors abroad as her nationals. As it recognizes inter- Korean trade, investment and other economic activities as intra-national exchanges and cooperation, preferential treatment can be possible. In light of these points, it is a narrow view that Territory Clause keeps cold war-like confrontation or becomes a stumbling block to peaceful unification policy.
But it is difficult to infer in the interpretation of the ROK's constitution that Territory clause has a more predominant effect than Unification Clause(Article 4) for dealing actively with the north Korea policy and pursuing effectively peaceful unification policy based on free-democratic basic order. Instead, to understand logical structure of the two clauses organically and systematically through norm-harmonizing interpretation, is a way that contributes to expediting inter-Korean reconciliation, exchanges and cooperation, and furthermore realizing peaceful national unification ultimately in maintaining ROK's legal and historical legitimacy. Furthermore, it is necessary for Korea to consider revising the Territory Clause progressively in the long term in order to support peaceful national unification on the constitutional law level.