The KORUS FTA’s problem of American exceptionalism
Hankyoreh, Seoul
The KORUS FTA’s problem of American exceptionalism
By Nam Hee-seob, Patent Attorney
22 October 2011
President Lee Myung-bak’s recent visit to the United States set a new political record. Prior to the South Korea-U.S. summit meeting, U.S. Congress passed the implementation bill for the South Korea-U.S. Free Trade Agreement (KORUS FTA) with unprecedented speed. But does President Lee know that the KORUS FTA has no force in the United States whatsoever? Article 102 of the implementation bill recently passed by Congress makes it clear that U.S. law comes first in cases where the KORUS FTA comes into conflict with the former. It also prevents any individual from asserting his or her rights in a U.S. court of law based on the KORUS FTA. It also prevents legal action from taken even when the agreement is violated by the U.S. federal government, state governments or governmental institutions. What kind of law is this? An FTA is a promise between two countries, but hasn’t the U.S. effectively proclaimed it to be more than a meaningless scrap of paper as far as its own territory is concerned?
In contrast, South Korea’s KORUS FTA ratification bill, if passed by the National Assembly, will give the agreement the same force as South Korean domestic law. When this inequality was pointed out, the Ministry of Foreign Affairs and Trade (MOFAT) issued a press release explaining that this was because of differences between the two states’ legal systems. The ministry says that media are misreporting the facts because they do not understand them. In fact, it is the MOFAT that does not know about legal systems and is making claims that differ from the truth.
The relationship between international and domestic law can be monistic or a dualistic, depending on whether the two are regarded as one single legal system. According to the doctrine of monism, international law can be applied directly in domestic cases. Under a dualistic system, however, this cannot happen and international law must undergo some kind of transformation before domestic application. The U.S.’s implementation bill is precisely this type of transformative measure. MOFAT’s counterarguments essentially state that international law can be applied in South Korea without any transformative procedures because it is regarded by the South Korean constitution as being of equal validity to domestic law.
This counterargument contains two fatal flaws. First, in terms of its constitution alone, the U.S. is also a monistic state. The U.S. constitution recognizes as valid federal law any treaty concluded by the president with the agreement of at least two thirds of the members of the Senate. There is no particular difference between this and the South Korean constitution, which the MOFAT cites as grounds for monism. In that case, why did the U.S. pass the KORUS FTA by way of an implementation law? This was a kind of expedient. The U.S. has concluded treaties according to the provisions of it constitution for more than 150 years, but, since World War II, it has passed most treaties using the expedient form of an agreement between Congress and administrations. This is because obtaining the agreement of a simple majority of members in each house is easier than obtaining that of two thirds of members of the Senate. Trade-related treaties have been no exception to this. This has sometimes led to disputes regarding violation of the constitution.
As soon as the North American Free Trade Agreement (NAFTA) was passed in the form of an implementation law, the United Steelworkers union filed a constitutional lawsuit, but a U.S. court stepped back from the case, saying that there were no clear grounds in the U.S. Constitution for trying the case, and that such political action was not an object for judicial review. There are thus no grounds to the MOFAT’s claim that the US passage of the KORUS FTA using an implementation bill is natural because of differences in its legal system.
Second, even if the U.S. is a dualistic state, denying the validity of the agreement in the implementation law is a different issue altogether. If the implementation law is regarded as the transformative measure in a dualistic legal system, there is nothing to stop it from declaring that it accepts the KORUS FTA as domestic law. The problem is that the implementation law totally denies the validity of the agreement within the U.S. and prevents anybody from asserting rights based on the agreement there. This is a question of U.S. exceptionalism in ignoring international law, and of chauvinism on the part of Congress.
The U.S. is one of the leading countries when it comes to not amending its domestic laws and openly leaving them as they are even when it has been ruled by international bodies to be in violation of international treaties. The South Korean government should not just defend the exceptionalism of the U.S., but start by investigating whether the implementation law complies with U.S. obligations and whether it fully guarantees South Korea’s rights, then give a sincere report of its findings to the National Assembly. The initial draft of the implementation law was made public in March this year, but the government has still not accomplished this basic task and is effectively attempting to block all criticism of problems of inequality.
The views presented in this column are the writer’s own, and do not necessarily reflect those of The Hankyoreh.
