This Day in International Law: December 2

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By Gina Choi

On December 2, 1954, the Sino-American Mutual Defense Treaty (“Treaty”) was signed between the U.S. and the Republic of China, Taiwan, which formed the basis of close security alliance between the U.S. and Taiwan. Some of the terms and conditions of the Treaty remained effective in the Taiwan Relations Act passed by the U.S. Congress, which became a new legal basis for U.S.-Taiwan relations after the U.S. formalized diplomatic relations with the People’s Republic of China and terminated the Treaty in 1979.

President Jimmy Carter’s termination of the Treaty without the approval of Senate was challenged by a few members of Congress including Senator Barry Goldwater and became the subject matter of the U.S. Supreme Court case Goldwater v. Carter. A majority of six Justices of the Supreme Court ruled that the case was not justiciable given the political nature of the dispute, and consequently, the termination was maintained. Three dissenting Justices opined that the case pertained to a question of whether the Constitution commits the President to certain political decision-making authority and should have been resolved by the Court as a matter of constitutional law.

A Tragic Combination of a Shaman and Foreign Policy in South Korea

By Ju Yoen Lee

Since the end of 2015, there have been many abrupt changes in South Korean foreign policy that have been extremely difficult to explain, even to South Koreans themselves.

What led to the sudden agreement between South Korea and Japan on December 28, 2015, regarding the “comfort women,”—or women who experienced mass-scale sex slavery by the Imperial Japanese Army during World War II—has been a mystery.

Although the issue of whether Japan would adequately apologize and compensate South Korea has existed for decades, and many South Koreans regard the Japanese government’s apology as insincere and unacceptable, the South Korean government unexpectedly reached an agreement with the Japanese government and announced the matter was “finally and irreversibly resolved.” South Korean foreign minister reportedly asked the President for three more months to negotiate and reach a better deal, but was denied. Although the United States has tried to help reconcile South Korea and Japan to strengthen its Asian alliances against China, it is not easy to explain why the South Korean government suddenly reversed its position and risked a very predictable political backlash that became a reality in the April 2016 legislative election.

In February 2016, South Korea suddenly closed the Kaesong Industrial Region in North Korea for an indefinite period. Although access to Kaesong was occasionally restricted at times of tension between North Korea and South Korea, more than one hundred small- to mid-scale South Korean companies had benefited from the cheap but skilled labor of North Korea. This closure was an unprecedented case because the region has often been considered one of few remaining symbols of co-operation between the two Koreas despite controversy and has survived prolonged tension including the nuclear tests triggered by North Korea.

The South Korean government did not fully elaborate on why its policy changed so abruptly, which contradicts South Korean President Park Geun-hye’s “Dresden Declaration” in January 2014 that unification is a “Jackpot” and a reunified Korea will flourish. South Korean media recently reported that the South Korean Ministry of Unification opposed a full-scale shutdown of the region and proposed a “temporary” or “provisional” shutdown instead, but such calls were shrugged off.

In July of this year, the South Korean government announced the American deployment of the Terminal High-Altitude Area Defense (THAAD). This anti-ballistic missile system is alleged to have a very sophisticated radar system capable of detecting targets in parts of China and Russia; thus, China and Russia have been against the deployment of THAAD.

According to South Korean media, the decision to consent to the THAAD deployment was made in June 2016 despite the objection of the Ministry of Foreign Affairs (MOFA). After the decision was made, MOFA desperately demanded the Presidential Office delaying the announcement as much as possible so the announcement would not overlap with the official visit of the South Korean Prime Minister to China. Even the Ministry of Defense, which consented to the deployment of THAAD, was not ready for deployment at the time of the announcement, and it has had great difficulty finding the right place to put the radar system due to the opposition of many South Koreans. There is strong opposition to the deployment in South Korea not only because it might heighten tension in the Northeast Asia region but also because the system is alleged to have potential health problems due to the high intensity of the electromagnetic field.

These incidents indicate that there is not enough coordination in the South Korean government when key decisions regarding foreign policy are made. For many years, South Korea has tried not to provoke China and North Korea while maintaining an alliance with the United States. However, South Korean foreign policy has drastically changed since December 2015, and the South Korean ministries in charge of foreign policy were excluded from the decision-making process. How could this happen?

A Shaman Behind the President

Recently, it came to light that Choi Soon-sil, a close “mentor” of the president, has been deeply involved in the policymaking process, including South Korea’s foreign policies. Choi is the daughter of the late Choi Tae-min who created a shamanistic cult called the Church of Eternal Life that is a mixture of Catholicism, Buddhism, and Shamanism in the 1970s. Choi’s father was often compared to Rasputin, who led Imperial Russia to collapse. Ms. Choi was deeply involved in her father’s cult and has developed a rapport with the current President Park, the daughter of assassinated dictator Park Chung-hee, for almost four decades. Although Choi does not have a bachelor’s degree and has no official status, Park allowed Choi to access top diplomatic and military secrets. South Korean media report that Choi liked to revise the manuscripts for Park’s speeches, influencing Park to use shamanistic expressions such as “the whole universe will help us if we want something ardently,” bewildering many South Koreans.

Choi has wielded unlimited power and gone unnoticed by most people including many in the ruling party and the government. Meanwhile, a former senior police officer who was stationed to the presidential office testified that Choi was number one in power, her now divorced husband was number two, and President Park was only number three. Countless acts of corruption are being unveiled, including unusually large sums of donation to Choi’s business from major companies such as Samsung.

Although Park has officially apologized twice since the issue emerged, her approval rate has fallen to 5 percent. In addition to influential politicians, 90 percent of South Koreans, including her former supporters, are demanding Park’s resignation. Regardless of whether Park resigns or not, many claim that her political career has already come to an end despite the fifteen months remaining in her term.

Choi and Foreign Policy

What does Choi have to do with South Korean foreign policy? A source close to Choi claims that Choi was convinced that North Korea would collapse within two years. This explains why South Korean foreign policy became more confrontational against North Korea after 2014, refusing any kind of meaningful dialogue between the North and the South. A political amateur prepossessed with the idea that North Korea’s collapse was imminent (wishful thinking that has persisted for more than two decades in many countries) maneuvered the South Korean president into shaking the basis of South Korean foreign policy. Choi’s influence also best explains why President Park unilaterally pushed for the “comfort women” agreement despite the opposition of the foreign minister.

Although the mystery surrounding the abrupt changes in South Korean foreign policy now appears to be solved, we are faced with even more difficult questions. Will South Korean foreign policy change with the indictment of Choi? If yes, then how will it change? The United States and Japanese governments are reportedly taking a close look at the development of the case. The Obama Administration has been keen on “Pivot to Asia,” which focuses on containing China by strengthening the US allies in Asia. South Korean Cabinet signed the General Security of Military Information Agreement between Japan and South Korea with Japan on November 23, 2016. The Japanese Prime Minister Shinzo Abe’s administration has been eager to conclude the military pact that was stalled in 2012 due to deep-rooted anti-Japanese sentiment, perhaps before Park further loses control over state affairs.

As mentioned above, President Park’s leadership is unstable. In light of the slowing momentum for the deployment of THAAD, Beijing hopes that Seoul ultimately turns over the decision to consent to the deployment of THAAD, to which Washington and Tokyo will of course object. Foreign policy is inherently unpredictable, but it could not be more unpredictable in and around the Korean Peninsula now.

Quo vadis, Northeast Asia?

 

Ju Yoen Lee is a South Korean attorney and currently a visiting scholar at Cornell Law School.

This Day in International Law: November 25

By: Sara Birkenthal, J.D. Candidate, University of California, Berkeley

 

On November 25, 1999, a five-year old Cuban boy, Elián González, was rescued by fishermen and turned over to the United States Coast Guard while floating in an inner tube off the Florida coast. He’d just been through the traumatizing experience of watching his mother Elizabet drown when the overcrowded boat smuggling them from Cuba capsized.

The bilateral relationship between the U.S. and Cuba has long been tumultuous. These tensions can be traced to the Cold War. In 1959, Fidel Castro and a group of revolutionaries seized power in Havana, overthrowing Fulgencio Batista. The U.S. recognized Castro’s government, despite reservations about its Communist system. However, as the Castro government hiked up taxes on U.S. properties and increased trade with the Soviet Union, the U.S. initially responded by slashing Cuban sugar imports and ultimately expanded to a full economic embargo.

In 1961, the U.S. cut diplomatic ties with Cuba and began pursuing clandestine operations to overthrow the Castro regime. The Bay of Pigs invasion in 1961, a failed attempt supported by the CIA to topple the government, fueled mistrust, leading Cuba to allow the Soviet Union to build a missile base on the island. This led the U.S. to impose a naval quarantine around the island. The Cuban Missile Crisis came to a close with an agreement that the sites would be disassembled in exchange for the U.S. not invading Cuba. Isolation continued to characterize U.S. policy toward Cuba, even after the fall of the Soviet Union.

However, under international law, when Elián arrived in U.S. territory, U.S. authorities were obligated to restore him to his father, Juan Miguel González, who did not consent to Elián’s mother taking their son on the voyage,— even if that meant returning him to Castro’s communist society. The Hague Convention on the Civil Aspects of International Child Abduction (the Convention) seeks to guarantee cooperation among many nations, and ultimately all nations, to expeditiously return the child to the habitual residence for custodial consideration. The Convention requires that both the “home” state and the foreign state be signatories of the Convention at the time of the abduction, the Convention was not triggered in the Elián González case because though the U.S. was a signatory, Cuba was not.

Therefore, in the absence of an international agreement to resolve the issue, the U.S. turned to its own immigration laws. First, Elián was placed with his family in Miami, who initially refused to hand him over. Ultimately, after Castro organized mass demonstrations, federal agents seized Elián from his family, and he was reunited with his father.

The case was a flashpoint between the U.S. and Cuba. With the recent restoration of diplomatic ties between the two countries, it remains to be seen whether they can put aside their long history of hostility and achieve détente.