ILO 결사의 자유 관련 협약의 국내 이행의 실태와 쟁점

On 20 April 2021, the Republic of Korea (hereafter, ‘Korea’) ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98). The Constitution of Korea provides that treaties duly concluded and promulgated under the Constitution and the generally recognized rules of international law shall have the same effect as the domestic laws of the Republic of Korea (Article 6 Paragraph 1). Accordingly, the ratified Conventions have the same effect as the domestic laws, and all public authorities shall respect and promote the international labour law concerning freedom of association. Even in Korean public authorities, however, practices of non-compliance with international labour law are widespread. Moreover, public authorities including domestic courts have quite often interpreted the content of international labour law arbitrarily without reference to the work of international supervisory bodies. This article analyses the principles and practices concerning the domestic use of ILO Conventions on freedom of association and the right to collective bargaining. On one hand, it explores the domestic legal status of the relevant International labour standards (ILS) in the light of the Constitutional principle of respect for international law. On the other hand, it explains the rules of interpretation of ILO Conventions, by providing the relevant decisions and comments of the ILO supervisory bodies and UN human rights treaty bodies. For this purpose, this article examines issues relating to the Korean legislation and court decisions in the light of ILS. It mainly focuses on cases which international supervisory bodies have set out comments and decisions, but also assesses whether and to what extent Korean administrative authorities and courts have dealt with such issues in line with the ILS. Thereafter, it shows that the Government and courts maintain its previous position which has not been in conformity with the principles on freedom of association, arguing that interpretation and recommendations of the ILO supervisory bodies are not ‘legally’ binding. So, in sum, it is hard to say that there has been a meaningful improvement in the commitment to respecting, promoting and realising, in laws and practices, the principles on freedom of association after ratifying the ILO Conventions concerning freedom of association, in Korea.