hankyoreh

By Yeo Hyeon-ho, Senior Staff Writer

An ongoing debate by judges questioning the railroading of the SouthKorea-U.S. Free Trade Agreement (KORUS FTA) appear to have strengthened calls for renegotiation.

The ongoing controversy surrounding the situation could lead to increased calls for countermeasures. The railroading, signing by the president, and revelation of its specific contents and a tangible manifestation of its impact is expected to lead to increased highlighting of the problems it brings in each area.

When Incheon District Court Presiding Judge Kim Ha-neul posted a message on an internal court bulletin board on Dec. 1 saying, “I suggest putting together a task force to reexamine the agreement,” more than 170 comments agreeing with the message were posted in a single day. Kim then took down the original post on the afternoon of Dec. 2 and began writing an appeal for submission to the Supreme Court. Kim emphasized that her questioning of the agreement had nothing to do with ideological tendencies, calling herself a “rational conservative” and stating that she voted for Grand National Party candidate Na Kyung-won in the Seoul mayoral by-elections in October this year. Presiding judges Choi Eun-bae and Lee Jeong-ryeol, who posted Facebook messages expressing their opposition to the KORUS FTA railroad, also repeatedly pointed out the problems with the agreement in radio interviews on the same day.

Such increasing criticism from within the judiciary, which normally refrains from making statements on social issues, is due to recognition of the high risk that the agreement will infringe fundamentally upon judicial sovereignty.

“If the agreement comes in to effect in its current form, in cases where American investors initiate a dispute with the Korean government on the grounds that the agreement has been violated, jurisdiction will lie with a third party mediating body, rather than a Korean court,” said Lee Jeong-ryeol. He said that the investor-state dispute (ISD) settlement system would “strip Korean courts of their jurisdiction.”

This is in fact a problem that has been pointed out for a long time. The Supreme Court warned in 2006, “Judicial sovereignty may be violated.”

At a personnel hearing at the National Assembly last month, prospective Supreme Court Justice Kim Yong-deok said regarding the ISD settlement system, “To be honest, it leaves me heartbroken that South Korean courts may be excluded and cases resolved by an international arbitration center.”

The fundamental problem that legal experts cite with the ISD settlement system is that it impairs the function of state institutions. Because this system regards the regulations and public policies of the executive, the laws of parliament, the administrative actions of local authorities and even the rulings of the judiciary as actions on the part of the state, and allows the state to be deemed liable for reparations, it will impose restrictions not only when it comes to clashes with Korean domestic law, but also regarding the exercising by state institutions of their distinct authorities.

The judgment of such matters in the court of a third country is cited as restricting the functions of the Korean judiciary. The ISD settlement system stipulates that decisions must be taken in a single trial, by three mediators that do not possess official status. The fact that it potentially allows several foreign investors to obtain different rulings through separate mediation procedures regarding the same matter means that the system even threatens legal stability.

In 2001, the New York Times wrote in of the system, “Their meetings are held in secret… but this international court, made up of a small number of people… can cancel the laws of a state, evaluate its judicial system, and challenge its environmental regulations.” This is a criticism of the system’s impartiality and lack of transparency.

A significant number of those in the Korean judiciary agree at least on the need to study such problems in the agreement, if not going as far as forming a task force. Some hope that Supreme Court Chief Justice Yang Sung-tae may at last provide opportunities for dialogue and discussion of these problems, given the emphasis he has placed on “communication” since taking office.

Please direct questions or comments to [englishhani@hani.co.kr]