Treaties on Relocation of the U.S. Military Base Case

[18-1(A) KCCR 298, 2005Hun-Ma268, February 23, 2006]

Held, the relevant provisions of 'Treaty between the Republic of Korea and the United States of America for the Relocation of the U.S. Military Base from Seoul Area'(hereinafter referred to as the "relocation treaty"), 'Agreement on the Advisory Opinion for the Execution of the Treaty between the Republic of Korea and the United States of America for the Relocation of the U.S. Military Base from Seoul Area' (hereinafter referred to as the "agreement for the execution"), and 'Revised Agreement between the Republic of Korea and the United States of America for the Concerted Land Management & Planning signed on March 29, 2002' (hereinafter referred to as the "Land Management & Planning Agreement") (hereinafter referred the treaties and agreements above as, "the treaties at issue") are not in violation of the Constitution based on the procedural grounds.

Background of the Case

The treaties at issue were signed on October 26, 2004 and the relocation treaty and Land Management & Planning Agreement with exception of the agreement for the execution were voted by the National Assembly of the Republic of Korea for the ratification on December 9, 2004, at 250th Assembly(regular session) 14th plenary session. On December 17th, the relocation treaty as the treaty number 1701 and the agreement for the execution as the treaty number 1702 and on December 9, 2004, the revised treaty, as the

treaty number 1703, came into effect and were published on official gazette respectively. The Republic of Korea, along with the treaties at issue, pursuant to Article 2 of 'Agreement under Article 4 of the Mutual Defense Treaty between the Republic of Korea and the United States of America, Regarding Facilities and Areas and the Status of United States Armed Forces in the Republic of Korea (SOFA)‘ has begun the process of buying up and expropriation of 11,517,000㎡ including 9,405,000㎡ size of land in PengsungEup of City of Pyungtek which is nearby K-6 base and 2,112,000㎡ size of land in SeotanMyun of City of Pyungtek which is nearby K-55 base(Osan airfield) to give the site to the U.S. military for the use of new base. The complainants, the locals residing in DaechooRi, DodooRi, PengsungEup in City of Pyungtek, claiming that the treaties at issue infringe their right to equality, the right to conduct peaceful livelihood, filed the constitutional complaint in this case on March 15, 2005.

Summary of the Decision

The Constitutional Court, with a unanimous opinion of all Justices, has dismissed the constitutional complaint on the procedural ground. The summary of the grounds therefor is stated in the following paragraphs.

A. As Paragraph 1 of Article 68 of the Constitution provides that "Any person who claims that his basic right which is guaranteed by the Constitution has been violated by an exercise or non-exercise of governmental power …… may file a constitutional complaint," constitutional complaint can be brought by the person whose fundamental rights are being infringed directly and presently by an exercise or non-exercise of governmental power. The meaning of "Any person whose fundamental rights are being infringed" refers to the person that whose fundamental rights are infringed presently and directly by an exercise or non-exercise of governmental power.

B. The relocation of United States Military Base is either a matter of public policy or an execution of such policy, which inevitably affects the people who live nearby the Base. However, the Relocation neither has something to do with individuality or fate of certain people, nor puts on direct restriction on the freedom of choice pursuant to the difference of individual taste. Therefore, the Relocation decision is not upon the constitutional protection of freedom of choice. While a government would be better off if it listens to local people when such decision has adverse effect on

their livelihood, if such decision is not an exceptional one such as the merger and abolition of local community, it is not necessary to listen to local people's opinion beforehand.

Today, being free from war, terrorism and violence are prerequisites for the realization of human dignity and value as well as for the pursuit of happiness. Although there is no express provision in the Constitution that states such fundamental rights, it is necessary to protect such rights as the rights to live peacefully, as we can draw from Article 10 and Article 37 Paragraph 1 of the Constitution. The basic contents of such Rights is to ask the country for peaceful livelihood which would not be forced upon by committing aggression. The treaties at issue are for the relocation of the U.S. military base only, and the relocation itself would not justify the arguments that the country would be engaged in invading warfare. Therefore, there is no possibility that their right to conduct peaceful livelihood would be violated by having such treaty.

The treaty at issue only includes the agreements of relocation and the environmental rights, the right to make a statement during the proceedings of trial, the right for the pursuit of happiness, the right to equality, the right to own property would not be in direct violation because of such treaty. Furthermore, upon the relocation of the U.S. military base, although it is expected that their rights might be violated to some degree, that concern for infringement is only potential. Therefore, there is neither 'immediacy' nor 'directness' in terms of the violation of the rights described above.

C. Besides the infringements of their fundamental rights, the complainants also raise the argument that the treaty provisions at issue is in violation of the general constitutional articles(Article 5 and 60 of the Constitution). However, as noted before, without the possibility of any infringement of fundamental rights, the assertion that such treaty provisions at issue is in violation of general constitutional articles and the principles of the constitution does not meet the requirement of asking for the judgment on constitutional complaint, therefore could not be accepted.