[Viewpoint]No grounds for delayWhen Korea and the United States signed the U.S.-Korea Bilateral Beef Protocol ( Beef Agreement ) on April 18, 2008, U.S. Trade Representative Susan C. Schwab announced that the major obstacle to congressional consideration of the U.S.-Korea Free Trade Agreement had been removed. However, the ongoing storm of protest in Korea concerning perceived limits that the beef agreement places on Korea in safeguarding against unsafe beef imports threatens to undermine this crucial development for the FTA. This criticism has already led to delays in Korea s implementation of the beef agreement, angering key U.S. lawmakers like Senator Max Baucus of Montana, and upsetting prospects for the U.S. ratification of the trade pact, which now are delicately poised.
Of course, trade in agricultural products is always sensitive, and every reasonable government justifiably places the highest value on ensuring a safe food supply. But the passionate criticism of the beef agreement in Korea, which has already delayed its implementation, reflects a misunderstanding of Korea s rights under this agreement and under international trade pacts more generally. In short, Korea did not, when it signed the beef agreement, yield its ability to monitor and, if necessary, halt imports of U.S. beef tainted by bovine spongiform encephalopathy or other diseases. In fact, Korea retains substantial flexibility under the beef agreement to respond to any future tainted imports as circumstances warrant. U.S. Trade Representative Schwab conceded this very point last week. Therefore, there is no real reason for Korea to seek the renegotiation of the beef agreement or to further delay its implementation.
At the center of the controversy is paragraph 5 of the beef agreement, which authorizes Korea to suspend U.S. beef imports if the World Organization for Animal Health determines that there has been a change in U.S. BSE status, if U.S. cattle are shown to be infected. Critics of the beef agreement are concerned that this provision means that, in the event of tainted beef imports, Korea must await a ruling by the OIE before it can justify halting U.S. imports, thereby putting people at risk for a considerable period of time .
This criticism is seriously misplaced. First, as reflected in the recent remarks by U.S. Trade Representative Schwab, Korea and the United States agree that the beef agreement does not limit Korea s rights to take actions to restrict beef imports, as appropriate, if U.S. beef is found to be tainted. This conclusion is grounded in the multilateral trade agreements. Most significantly, under Article 3.3 of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures, Korea is authorized to restrict imports if there is a scientific justification, or as a consequence of the level of sanitary protection deemed to be appropriate under the circumstances. This broad right is further clarified by Article 5.7 of the SPS, which would permit Korea to restrict U.S. beef imports on a temporary basis should relevant scientific evidence [be] insufficient; that is, if international bodies such as the OIE have not completed their assessments of the threat.
Additionally, and importantly, Article XX(b) of the General Agreement on Tariffs and Trade provides a relevant escape hatch. It allows WTO members to restrict imports if necessary to protect human, animal or plant life or health. Bilateral agreements that may be in place between the affected countries do not alter this fundamental right, unless those countries have decided to waive the right. Korea did not give up its rights under GATT Article XX(b) when it signed the beef agreement.
In light of the considerable rights Korea has under existing multilateral trade agreements, none of which are modified by the beef agreement, Korea has flexibility to respond, if needed, to any future U.S. beef imports that may be tainted. But, by delaying implementation of the beef agreement, even before any evidence of tainted U.S. beef has emerged, Korea has itself created a new obstacle to U.S. congressional approval of the FTA. As Senator Baucus stated in response to Korea s announcement of delayed implementation, Korea s actions are unhelpful to our countries economic relationship. This is a clear signal that congressional approval of the FTA hinges on Korea s implementation of the beef agreement.
Korea should not lose its focus on the larger context: Approval by the U.S. Congress of the FTA, which is of great importance to Korea economically and strategically.
The U.S. International Trade Commission recently estimated that the FTA would add $20 billion per year in bilateral trade between Korea and the United States. Korea should not allow this chance to slip away due to misplaced criticism of the beef agreement or unnecessary delays in its implementation.
*The writer is a senior partner at the law firm Akin, Gump, Strauss, Hauer & Feld in Washington, D.C.
by Sukhan Kim