Domestic Law Superiority Provision Contained in Implementing Legislations for Trade Agreements and Article 27 of the Vienna Convention on the Law of Treaties

The Korea-U. S. FTA has caused various controversies in Korea relating to many subjects. One of such subjects fomenting debates is the provision contained in the implementing legislation of the United States to implement the Korea-U. S. FTA, which provides that U. S. domestic law will apply in the United States in the case of conflict between the FTA and the domestic law. Some people interpret this as a basis for the United States to denounce its obligation under the Korea-U. S. FTA and virtually vitiate the FTA with Korea. In fact, this provision appears in all trade agreements that the United States has concluded since the WTO Agreements in 1994. A more careful reading of the provision indicates that this provision is simply the reflection of the unique nature of the United States in accepting international law (that is, treaties) into its domestic legal system. As regards trade agreements, the United States follows a so-called dualism concept, which always requires domestic implementing legislation and which stands for the proposition that what applies domestically is the domestic legislation, not the treaties themselves. The domestic law superiority provision is the one that reflects this dualism trait in the U. S. law. Thus, it could constitute an exaggeration to portray this provision as a authorized permission of the United States to deviate from the treaty obligations. In addition, established international law jurisprudence has made clear that no country is allowed to justify its international law violation (that is, treaty violation) by relying upon its domestic law. This basically means that the domestic implementing legislation does not actually protect the United States in the case of its violation of the Korea-U. S. FTA. The WTO or FTA panels that hear a dispute between Korea and the United States will simply apply the Korea-U. S. FTA as it is written, and the U. S. domestic law or the Korean domestic law will not provide a binding norm for the panels. In the light of this discussion, the recent debate on the Korea-U. S. FTA relating to the U. S. domestic implementing legislation does not seem to accurately address the reality or is otherwise based on appropriate analysis. More cautious and accurate analyses and discussions would be in order