통상조약 내 연계형 노동조항의 불확정성과 국내법 심사‒한․유럽연합 자유무역협정 제13장 의무 준수 사건을 중심으로‒

Abstract

As a new phenomenon to be noted in international law, the interaction among sub-fields of international law is emerging. Among them, there is a link between trade and labour. This link is to prescribe labour provisions that guarantee labour rights in free trade agreements regulating trade. For such labour provisions, references are generally made to the International Labour Organization Declaration on Fundamental Principles and Rights at Work (“ILO Declaration”). A clause that directs an explicit reference is inherently indeterminate to function effectively. Through the analysis of the Report of the Panel of Experts (“Panel Report”) on the case of violations of labour provisions in the EU-Korea Free Trade Agreement (“EU-Korea FTA”), this article examines whether the labour provisions that explicitly refer to soft international standards such as ILO Declaration can function as rules that can enforce international labour standards in trade treaties. The findings of analyzing the Panel Report in this case can be summarized as follows: First, the labour provision with an explicit reference functions as an effect indicator that gives legal binding force to the content of the norms in the referenced international document. Even if there is no direct legal binding force in the indicated international document, its content remains legally binding pursuant to the labour provision. The norms in the Compilation of Decisions of the International Labour Organization’s Committee on Freedom of Association (“Compilation of Decisions”) thus become concrete legal norms directly applicable to the facts in question. Second, the obligation to respect, promote, and realize the principle of freedom of association was inclusively categorized as an obligation of result. Therefore, the Panel of Experts examined whether the relevant laws of Korea and the actual applications were consistent with the results required by the standards in the Compilation of Decisions. The obligation of result is relatively easier to prove for the party claiming non-performance while the burden of proof is cumbersome for the party claiming performance. It is of great interest to see how broadly and deeply Article 13.4.3 of the EU-Korea FTA will affect Korea’s guarantee of labour rights in the future. This is because the logic of finding and applying the law presented in the process of resolving the normative uncertainty of Article 13.4.3 by the Panel of Experts’ in deciding this case formally encompasses the entire scope governed by the fundamental conventions of the ILO. However, it is not easy to predict how it will develop in the future. Whether the EU will request the establishment of an expert panel procedure will vary on a case-by-case basis, and it is unclear how the function of an expert panel without formal rules of procedure will be addressed in the revision of the EU-Korea FTA.