[Editorial] KORUS FTA in conflict with the Constitution

Posted on : 2011-10-25 11:18 KST Modified on : 2011-10-25 11:18 KST

The designated final discussions at the National Assembly’s Foreign Affairs, Trade and Unification Committee included opinions for and against the South Korea-U.S. Free Trade Agreement (KORUS FTA), and closed Monday. Opposition parties, the government and the ruling party all found the discussion beneficial. It deserves a positive assessment given that it involved the National Assembly listening attentively to the public for the first time in quite some time. In which case, it is important in future that the problems with the FTA that were confirmed during the discussion are solved, and new tasks accomplished.
More than a few points of contention arose during the final discussion. Some were due to differing value judgments between advocates and opponents of the KORUS FTA. Some contentious issues, however, require precise separation of fact and fiction. In particular, the issue of the agreement’s legal status and validity being different in South Korea and the United States is something that absolutely must be resolved at by the National Assembly. Legal inequalities in the KORUS FTA are matters that could threaten South Korea’s legislative and judicial sovereignty.
South Korea’s Constitution recognizes external treaties that have been formally agreed by the National Assembly as law. According to the principle whereby new laws are given priority, moreover, the agreement will neutralize at a stroke all domestic legislation that clashes with it as soon as it comes into effect. Even by the government’s own estimation, 23 laws have already been changed or are in the process of being amended because of the agreement. More serious still is the problem that some parts of the agreement threaten even the constitution. Article 3 of the South Korean Constitution defines its territory as the Korean Peninsula and its adjacent islands, but the KORUS FTA recognizes only South Korea. It also wreaks havoc with other important parts of the constitution such as “The State may regulate and coordinate economic affairs in order to democratize the economy” (Article 119, Clause 2), “The exercise of property rights shall conform to the public welfare” (Article 23, Clause 2) and “The State shall protect and foster small and medium enterprises” (Article 123, Clause 3).
In the United States, however, the case is completely different. The KORUS FTA implementation law passed by Congress contains only some of the provisions of the agreement. It contains only four amendments to U.S. law. Even these are trivial, procedural rule amendments necessary for trade, related to matters like tariffs and proof of country of origin; there is nothing that disturbs laws or systems, as in South Korea. Article 102 of the implementation law, moreover, clearly states that U.S. law takes priority in cases where it clashes with the KORUS FTA. This makes it explicit that U.S. policy will not be violated based on the agreement.
The government explains such imbalances in the treaty by saying that the U.S. legal system is different. This attitude is one that respects only the U.S.’s legislative sovereignty. The National Assembly must now eliminate unequal article in the KORUS FTA, just as Congress has done in the U.S.
Please direct questions or comments to [englishhani@hani.co.kr]

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