위안부 피해자 문제에 대한 한일외교장관회담의 헌법적 문제점

Abstract

Even though the power to conclude treaties belongs to the president, the National Assembly has the right to consent by conclusion and ratification of important treaties including those pertaining to mutual assistance or defense; treaties concerning important international organizations; treaties of friendship, trade and navigation; treaties pertaining to any restrictions in sovereignty; peace treaties; treaties which burden the State or the people with significant financial obligations; or treaties related to legislative matters (Art. 60 Constitution of the Republic of Korea). I argue that every governmental agreement, whether binding (treaties) or non-binding (agreements), need the consent of the Parliament. The constitutional principle of statutory or parliamentary reservation applies when the treaty restrict the basic rights of citizens, or when they have important and essential meaning for the life of the state or the people. The treaties should respect not only the basic rights of citizens, but also fundamental tenets of the rule of law (“Rechtsstaatprinzip” in German), including the principle of “vague and void” or “overbreadth” First, this agreement of Ministers of Foreign Affairs of the Republic of Korea and Japan cannot be reckoned as a formal treaty, because there was no written consent or agreement between the two countries; instead, it is better understood as a non-binding political announcement. From a procedural angle, this agreement must be concluded as a formal treaty which needs the consent of the National Assembly. Having failed to go through this process, this agreement infringes on the congressional power to consent to treaties. Moreover, the survivors of Japanese military sexual slavery (‘Comfort Women’) had the right to know about the progress of the talks and the details of the agreement; this right was violated when the Korean government unilaterally concluded the agreement without any notice to the survivors, and then declared the “comfort women issue […] finally and irreversibly resolved.” Thus, the government infringed upon the victims’ ‘right to know.’ Furthermore, the Japanese position on the issues related to ‘Comfort Women’ shows little change from the previous stance represented by the letter from the Japanese Prime Minister in 1995 when the Asian Women’s Fund (AWF) was founded. This ‘apology’ letter was rejected by most survivors and the Korean government at the time, on the grounds that the Japanese government had neither accepted legal responsibility for crimes against humanity, nor agreed to pay state reparations for the victims. Even though Japan’s position in the current agreement does not depart from this previous stance, the Korean government agreed to ‘settle’ the matter in exchange for Japan’s promise to pay $1 billion yen to build a ‘Comfort Women Foundation.’ The Korean government’s conclusion of this agreement is unconstitutional. It conflicts with the binding force of the Constitutional Court’s latest decision on August 30, 2011, in which the Court declared the failure of the government to resolve the ‘Comfort Women’ issue in light of Article 3 of the 1965 Korea-Japan Agreement as a violation of the Constitution, human dignity, personality right, the right to request state protection, and property rights. Therefore, I propose that the ‘Comfort Women’ survivors file a constitutional complaint against this agreement, as well as a motion for preliminary injunction to prohibit the government from building the $1 billion-yen ‘Comfort Women Foundation.’ In addition, the National Assembly should bring against President Park Geun-Hye a competence dispute suit before the Constitutional Court, alleging intrusion of the consenting authority of the National Assembly in concluding treaties. Finally, I suggest that the National Assembly request an impeachment adjudication against the Minister of Korea and President Park Geun-Hye by alleging violation of the consenting authority of the National Assembly and fundamental rights of ‘Comfort Women’ survivors.