Commentary on 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)
Institute of Workers Rights
Overview
1. Objectives and target readers
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 Commentary has two objectives:
l To provide a reference to guide judges, law makers, law enforcement officers and other lawyers and legal practitioners who wish to use the international labour standards (ILS) concerning freedom of association in domestic law;
l To help to better understand the relevant ILS and to fill the gap between the ILS and domestic law and practices, by providing the relevant decisions and comments of the ILO supervisory bodies.
This Commentary is therefore aimed at judges, public officers, lawyers and scholars in the field of labour law and human rights law and legal practitioners acting for workers’ and employers’ organisations.
This Commentary will be the first publication that systematically provides an Article-by-Article annotation of the ILO Conventions Nos 87 and 98 and the relevant work of ILO supervisory bodies in Korea.
2. Structure and content
Chapter 1 explains the characteristics and legal value of the ILS concerning freedom of association and right to collective bargaining. It focuses largely on the relevant ILO Conventions and Recommendations, but also describes United Nations sources relevant to freedom of association in order to emphasize that labour rights are also human rights. It also explains ILO mechanisms and supervisory bodies and stresses the legal value of the work of ILO supervisory bodies in that their comments and decisions enable the meaning and scope of the provisions of ILS to be clarified.
Chapter 2 analyses the principles on the domestic use of ILO Conventions on freedom of association and right to collective bargaining. On one hand, it explores the domestic legal status of the relevant 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 according to the Vienna Convention on the Law of Treaties. As shown in Chapter 1, the work of the ILO supervisory bodies are the most valuable sources for lawyers to understand the meaning and the scope of the provisions of the relevant ILS. In addition, this Chapter reviews ways for domestic judges to resolve incompatibility between the ILS and domestic legislation and jurisprudential principle.
Chapter 3 and Chapter 4 seek to provide an Article-by-Article annotation of the ILO Conventions Nos 87 and 98. For that purpose, we did research thoroughly on the relevant work of ILO supervisory bodies and the ILO instruments relating to adoption and implementation of the ILS (e.g. the travaux préparatoires).
Chapter 5 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 ILS.