By Kim Yon-se
Staff Reporter
Some lawyers say the scheduled notification of the government's decision to allow U.S. beef imports without the approval of the National Assembly could be unconstitutional.
Citing paragraph 1 of Article 60 of the Constitution, they regard the "agreed minutes'' on Korea's full-opening of the beef market to U.S. products as a "treaty'' which requires yes-or-no votes from lawmakers.
The two sides' beef talks belong to an accord "between countries,'' a commerce-specializing lawyer said Friday. "So, regardless of what title the negotiations were given, the minutes should be interpreted as a treaty.''
The "Vienna Convention on the Law of Treaties 1969'' defines a treaty as an international agreement concluded "between States'' in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and "whatever its particular designation," he said.
Article 60 also stipulates that a treaty restricting sovereignty should be subject to parliamentary ratification, the lawyer said. Opposition lawmakers and the majority of Koreans say the government yielded the so-called "quarantine sovereignty.''
A law professor requesting anonymity said the Lee Myung-bak administration gave up the sovereign right by failing to include paragraph 7 of Article 5 of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS).
The SPS paragraph stipulates that in cases where relevant "scientific evidence is insufficient,'' a member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information.
A law professor drew attention to Articles 10 and 35 which stipulate the people's right to seek "happiness,'' and the right to live in an environment which secures public "health.''
Article 37 bans the other freedom and rights which are not clarified by the Constitution from being neglected, he added.
The signing of the beef talks is not law. Accordingly, it is not the Constitutional Court but the Supreme Court that might rule possible suits or petitions against the Lee administration for its "failure'' in beef trade talks with Washington.
The Ministry for Food, Agriculture, Forestry and Fisheries is likely to notify the beef trade of conditions ― which involve Korea's import of U.S. beef irrespective of cattle age and bone-containing ― as early as next week.
Lawmakers of the main opposition United Democratic Party (UDP) are considering filing "populace'' or "constitutional'' suits against the government when the agriculture ministry conducts notification despite a public backlash.
A Pusan National University professor said he has little question about the constitutionality of the beef import conditions. He insisted that the minutes have little legal binding power and could not be regarded as a treaty.
The minutes hamper Korea's immediate import halt, he said. "Nevertheless, Korea will be entitled to apply the SPS Agreement and issue a ban on beef imports if a case of mad cow disease occurs in the U.S.''
But critics say that officials of Korea and the U.S. have only commented on general SPS accord without highlighting the paragraph 7 of Article 5.