군사안보외교통상 정책에 대한 민주주의적 통제 ; 한미FTA와 민주주의 -주권문제를 중심으로- = Democratic Control of the policy on defenoe or on international trade ; Korus FTA and Democracy

다국어 초록 (Multilingual Abstract)

This article aims at clarifying the legal character of the Korea-US Free Trade Agreement(referred to as the KORUS FTA below), examining the problems related to it, and suggesting a way to effectively respond to it. For this purpose, I try first to verify that under Sec. 1 of Art. 60 of the Korean Constitution it cannot be permitted to conclude or ratify a treaty restricting or infringing the national sovereignty. The next step is to make it clear that the KORUS FTA is not a mere trade-related agreement, but a treaty threatening the reduction or abandonment of national sovereignty, and thereby substantially requesting the revision of the constitution. Finally, I intend to suggest some possible ways of resistance, on the part of the people, in terms of current institutional mechanisms on the one hand, and new approaches beyond established institutions on the other. It cannot be denied that the KORUS FTA is a treaty leading to the violation of national sovereignty for the following reasons: First, it restricts the authority of the national government generally and irrevocably, which necessarily leads to the violation of the sovereignty in domestic level. The KORUS FTA also infringes on the principle of sovereign equality in that it applies to all the regional and local authorities in Korea while it may not be applicable to all 50 states in the US territory. Second, it seriously violates the fundamental human rights of the people provided by the constitution, such as the right to work and to independent association, collective bargaining and collective action, the right to health, environment, education and culture. Third and finally, the KORUS FTA contradicts basic constitutional principles such as those of economic democratization, cultural state, and pacifism. Also, it might result in the formation of another economic-military block of the countries including China, Russia and North Korea, which in turn would hinder in the construction of peace regime in Korean Peninsular and obstruct the reunification of two Koreas. Considering that the KORUS FTA is a treaty against the national sovereignty and thus cannot be given consent by the Congress, the government has to stop the on-going negotiations immediately. Even if the unconstitutional elements could be eliminated and the negotiation needs to be continued, it must be carried out justifiably only under the supervision of the National Assembly and in full participation of all the people and the parties concerned. If unfortunately the negotiation reaches to a settlement contrary to the constitution, the bill for ratification of the KORUS FTA must be submitted in the form of a proposal of amendments to the constitution. The above mentioned measures, however, are not expected to be helpful to stop the conclusion and ratification of the KORUS FTA. The administration has been ignoring the voice of the people from the pre-negotiation stage on, and the Congress also has remained a mere spectator, tacitly sympathizing with the administration. The sovereign, however, has no effective means to exercise control over them. This situation shows that the current constitutional frame work, denying the status of people as the substantial sovereign, could and should no more be sustained. It is time that we should take off the regime under which the election is considered as the only way of exercising the sovereignty while it virtually has become a process of handing over the sovereignty to those political agents called the representatives. Now is the time that the people should set out to create a new constitutional system in which they can actually exercise the sovereign power, enjoy the right of self-determination, and control directly the representative s going against the will of the people. That is the only way to protect and preserve the national sovereignty against the KORUS FTA.