8 | International Union Rights | 26/3 TOWARDS UNIVERSAL RATIFICATION OF C87 AND 98 Ratification of C87 and C98: A means of regression? Ratification of the non-ratified ILO conventions has been the most unachievable goal in the Republic of Korea for the last decades. The country has yet to ratify the Conventions 87 and 98 on freedom of association and the right to collective bargaining, as well as Conventions 29 and 105 on forced labour. Whenever the ILO or UN recommended Korea to ratify the international labour standards, consecutive governments have repeatedly promised to consider the possibility to do so. Sometimes the government voluntarily pledged to consider the ratification when it ran for the UN Human Rights Council. Even though the government has chaired the Council, the promise was never fulfilled. The major obstacle to ratification, the government suggested, is the existing law of South Korea – a view that is shared by the international community. Indeed, the Committee on Freedom of Association (CFA) of the ILO has repeatedly pointed out the domestic laws, institutions and practices which run counter to the fundamental principle. These contain a wide variety of violations; prohibition of union membership for the unemployed, the dismissed and various types of workers who are misclassified as independent contractors. The discretional power given to the administrative agency for screening the validity of the union establishment report during the process of certification is another major violation of the principle. The recurrent arrest and imprisonment of union leaders and members for union activity including strike is a typical breach of fundamental labour rights. Article 314 of the Criminal Law is a notorious provision frequently used to penalise striking workers and leaders of trade unions. It is common practice that the prosecutors declare a strike illegal even before the workers go into a collective action. This is due to the law in which it is almost impossible for a strike to be recognised as legitimate. Addressing the freedom of association complaint filed in 1995 (Case No 1865, Complaint date: 14-DEC-95), the CFA pointed out all the violations above mentioned and delivered various recommendations to the government. However, consecutive governments kept ignoring the recommendations, which made the case the second longest pending case. However, we have to remember that the government joined in the adoption of the ILO Declaration of the Fundamental Principle and Right at Work, 1998 under which the government has an obligation to respect, promote and realise freedom of association. Non-ratification provoked an international dispute This long-standing negligence led to a dispute under Chapter 13 (Trade and Sustainable Development) of the Korea-EU Free Trade Agreement (FTA). This is the first case in which the EU has triggered the dispute settlement mechanism under the Trade and Sustainable Development Chapter of an FTA. According to Article 13.4, Korea commits to make continued and sustained efforts towards ratifying the fundamental ILO Conventions. At the same time Korea commits to meet the obligations deriving from membership of the ILO and the ILO 1998 Declaration. The European Commission stated in its official letter sent on December 18, 2018: ‘more than seven years after the entry into force of the EU-Korea FTA, Korea has still not ratified the aforementioned four fundamental ILO Conventions. Thus, Korea appears to have acted inconsistently with Article 13.4 paragraph 3 last sentence of the EU-Korea FTA’. The EU also specified articles of the Trade Union and Labour Relation Adjustment Act (TULRAA) that appeared to be inconsistent with Korea’s obligations. The parties spent 90 days for the formal consultation to resolve the dispute but failed. Once again, the European Commission moved to the next step based on the Article 13.15 and requested the Korean government to convene a Panel of Experts to examine the issues that have not been satisfactorily addressed through the consultation. Here, I would like remind readers that the current administration listed the ratification of the non-ratified fundamental conventions in its own 100-point agenda, published on the 100th day of its inauguration; these 100 policy tasks are intended to be implemented during its five-year term (by 2022). What made the EU find the effort to...
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