국제노동기준의 동요 ― 결사의 자유와 파업권의 관계 ― (Legal Instabilities of International Labor Standards — Tensions between the Freedom of Association and the Right to Strike —)

서지정보

· 발행기관 : 한국노동법학회
· 수록지 정보 : 노동법학 / 62호 / 91 ~ 127페이지
· 저자명 : 이승욱

초록

It is not recently that the debate about the relationship between the right to organize and the right to strike has been raised at International Labour Organization (‘ILO’). The Main issues here include the question of whether international labor standards and the provisions of Convention No. 87 on Freedom of Association and Protection of the Right to Organize (1948) include the existence of a right to strike, the questions of the interrelationship, functioning of the various supervisory procedures related to articles 22, 23, 24 and 26 of the ILO Constitution and the complaints mechanism on freedom of association, and especially the question of the relation between powers of Committee of Experts on the Application of Conventions and Recommendations (‘CEACR’) and those of Conference Committee on the Application of Standards (‘CAS’).
The ILO’s supervisory mechanism is widely recognized as one of the oldest and most efficient international monitoring mechanisms among international organizations including the United Nations. However, at the 2012 International Labour Conference employers’ group refused to adopt a list of 25 ILO Member States to be discussed at CAS. They argued that from the substantive perspective the Convention 87 did not contain any specific provision on a right to strike and that from the procedural perspective, under the ILO Constitution, as the International Court of Justice is the only body that has the formal competence to interpret ILO Conventions, CEACR had no power or mandate to interpret any Conventions including Convention 87. Thus, the 2012 CAS failed to adopt its list of individual cases for the first time since this procedure was created in 1927. This standstill had lasted for almost 3 years. On February 2015, social partners managed to made an joint statement which brought a deadlock at CAS to an end. However, I believe that as this compromise is only a stopgap measure, the underlying problems that can lead to significant disruptions of the whole ILO supervisory system remain intact.
This paper tries to clarify ‘why’ these kinds of questions are raised at ILO, one of the most sophisticated monitoring mechanism among international organizations, and why are the issues being raised ‘now’. There is an urgent need to answer these questions in a right way. If these questions remain unanswered or answered improperly, possible similar impasse at ILO could happen anytime in the future.

영어초록

It is not recently that the debate about the relationship between the right to organize and the right to strike has been raised at International Labour Organization (‘ILO’). The Main issues here include the question of whether international labor standards and the provisions of Convention No. 87 on Freedom of Association and Protection of the Right to Organize (1948) include the existence of a right to strike, the questions of the interrelationship, functioning of the various supervisory procedures related to articles 22, 23, 24 and 26 of the ILO Constitution and the complaints mechanism on freedom of association, and especially the question of the relation between powers of Committee of Experts on the Application of Conventions and Recommendations (‘CEACR’) and those of Conference Committee on the Application of Standards (‘CAS’).
The ILO’s supervisory mechanism is widely recognized as one of the oldest and most efficient international monitoring mechanisms among international organizations including the United Nations. However, at the 2012 International Labour Conference employers’ group refused to adopt a list of 25 ILO Member States to be discussed at CAS. They argued that from the substantive perspective the Convention 87 did not contain any specific provision on a right to strike and that from the procedural perspective, under the ILO Constitution, as the International Court of Justice is the only body that has the formal competence to interpret ILO Conventions, CEACR had no power or mandate to interpret any Conventions including Convention 87. Thus, the 2012 CAS failed to adopt its list of individual cases for the first time since this procedure was created in 1927. This standstill had lasted for almost 3 years. On February 2015, social partners managed to made an joint statement which brought a deadlock at CAS to an end. However, I believe that as this compromise is only a stopgap measure, the underlying problems that can lead to significant disruptions of the whole ILO supervisory system remain intact.
This paper tries to clarify ‘why’ these kinds of questions are raised at ILO, one of the most sophisticated monitoring mechanism among international organizations, and why are the issues being raised ‘now’. There is an urgent need to answer these questions in a right way. If these questions remain unanswered or answered improperly, possible similar impasse at ILO could happen anytime in the future.

참고자료

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