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KORUS FTA violates judicial authority

Hankyoreh, Seoul

Editorial: KORUS FTA violates judicial authority

5 December 2011

Who holds legal interpretation authority for the South Korea-United States Free Trade Agreement? The clear answer is the judiciary. Treaties with countries overseas are afforded equal treatment to domestic laws. Yet, it appears likely that the South Korean judiciary’s authority for legal interpretation will be violated once the KORUS FTA takes effect. There is a strong chance that our courts will be obliged to accept interpretations of the agreement made by a joint committee of the two countries’ trade representatives.

This is evident in a document sent recently to the office of main opposition Democratic Party (DP) Lawmaker Park Joo-sun by the Ministry of Foreign Affairs and Trade (MOFAT). In response to Park’s question as to whether the joint committee’s interpretations of the agreement would be binding for South Korean courts, the ministry reportedly answered that in view of their insufficient expertise on the circumstances of the signing and other pacts, courts would be expected to respect a considerable portion of the legal bases or determinations informing the committee’s decisions and interpretations. The idea was somewhat delicately expressed, but it strongly suggests that courts will be obliged to accept the interpretations of the committee formed after the KORUS FTA takes effect.

If this happens, the executive would essentially be wielding the judiciary’s own powers of legal interpretation. For the executive to assume interpretative authority for the agreement, after already passing it without proper scrutiny or controls from the legislative branch, flies in the face of separation of powers as specified in the Constitution. It is unacceptable for trade officials to assume the judiciary’s authority for legal interpretation at a time when judicial sovereignty is coming under threat due to the agreement’s investor-state dispute (ISD) provisions.

In particular, the ministry’s use of the term “insufficient expertise” to describe the courts is not only inappropriate but incredibly arrogant. Even if the courts are not aware of the detailed circumstances behind the signing of the agreement, it is wrong to present this as being linked to a lack of expertise for legal interpretation. The courts do possess some degree of expertise on interpreting international treaties and should not be forced to go along with the interpretations of the joint committee.

A proposal by Senior Judge Kim Ha-neul to form a KORUS FTA task force within the judiciary has reportedly met with a strong response, with a petition to this effect to be submitted shortly to the Chief Justice of the Supreme Court. We hope the Chief Justice listens to the concerns of our judges and establishes the task force as soon as possible. If it is established, there will need to be an in-depth examination of the various problem areas mentioned to date, including the infringement of judicial sovereignty and the issue of authority for interpreting the agreement, and steps will need to be taken to address them.