한・일 정보보호협정의 체결형태에 관한 논란과 개선과제

The Republic of Korea is a party to numerous security agreements with other nations, primarily the United States. The topics covered, along with the significance of the obligations imposed upon agreement parties, may vary. Some international security agreements entered by the Republic of Korea, such as those obliging parties to come to the defense of another in the event of an attack, those imposing substantial financial burden, or those having legislative effect, meet the constitutional requirements and have been entered as treaties, ratified with the consent of the Legislature. Other agreements dealing with more technical matters, such as the protection of classified military information, are entered more routinely and usually take a form other than a treaty, ratified with the consent of the Legislature (i.e., as a treaty, ratified without the consent of the Legislature or an agency-to-agency arrangement). Occasionally, the substance and form of a proposed security agreement may become a source of dispute between the Legislature and the executive branch. In 2012, the executive branch negotiated and was about to sign an Agreement on the Protection of Classified Information with Japan in furtherance of efforts to ensure the reciprocal protection of classified military information exchanged between the Parties. The negotiations revealed a lack of domestic consensus regarding the prerogatives of the Legislature and the President with respect to this type of treaty – whether the constitutional requirements for the legislative consent to the President entering into the treaty was met and whether prior consultation with the Legislature in a transparent manner was needed– even though the Republic of Korea previously had entered into many General Security of Military Information Agreements (GSOMIAs) with 23 countries and one international organization. For months, a high profile debate about separation of powers played itself in the context of three pieces of legislation proposed by Members that would increase the Legislature’s role in concluding a treaty, and on the editorial page of newspapers. In this debate, the central separation-of-powers issue in the treaty formation context was not definitely resolved. It is likely that future disputes will arise between the political branches regarding the entering of international security agreements. Regardless of the form a security arrangement may take, the Legislature has several tools to exercise oversight regarding the negotiation, form, and conclusion of the agreement by the Republic of Korea. This paper begins by providing context concerning the negotiation and the text of the Agreement on the Protection of Classified Information with Japan. Next, the paper discusses historical precedents as to the types of international security agreements, with detailed attention paid to past security agreements entered by other countries. The paper discusses the oversight role that the Legislature exercises with respect to entering international security agreements involving the Republic of Korea.