The consequences of repatriation for North Korean escapees can be disastrous. According to a recent report from the United States Congressional Executive Commission on China and information received by various UN Special Procedures, they are often subjected to harsh interrogation, torture, violence, forced abortion, and imprisonment upon return to North Korea. According to new research by the Citizens’ Alliance on North Korean Human Rights, this can include years of hard labour in prison camps (kyohwaso), and producing goods such as textiles and wigs for Chinese companies – thus creating a financial incentive for further repatriations. Some repatriated North Koreans are able to avoid serious punishment through paying bribes or forced donation of ‘loyalty money’, but still face serious social consequences upon return.

China’s program of repatriation violates international law. China has ratified the 1951 Refugee Convention and the 1967 Protocol. Article 33 of the Refugee Convention prohibits the expel or return (‘refoulement’) of refugees where their ‘life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. Two questions thus arise: are the North Korean escapees ‘refugees’? And if so, would their life or freedom be threatened on the basis of one of the five protected grounds (race, religion, nationality, membership of a particular social group, and political opinion) if repatriated?

The answer to both questions is positive. Many of the North Korean escapees have left because they desire freedom; others leave for economic reasons. Regardless, upon arrival in China they should all be considered refugees sur place, meaning people who were not refugees when leaving their country, but who later became refugees. Once North Korean citizens flee their homeland, the Kim regime assumes they are political opponents, and they thus face the prospect of politically motivated punishment, abuse, and even torture upon repatriation.

With no safe way to return home, North Korean escapees are political refugees, no more and no less. That does not mean that China must allow them to stay in the country. South Korea welcomes North Korean escapees as co-nationals, and China could legitimately send them to Seoul. However, their choice to instead repatriate escapees to North Korea violates China’s conventional duties, and China incurs state responsibility for any such actions.

China has also ratified the Convention against Torture and other Cruel, Inhuman or Degrading Treatment of Punishment (‘Torture Convention’). Article 3 of the Torture Convention prohibits refoulement to ‘another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.’ It is well recognised that North Korean escapees would face the threat of torture and death upon repatriation to North Korea. This is true regardless of their motivation for leaving the country. Even those leaving because they were starving would be subject to this fate. Thus, even if denied refugee status, they still should not be returned to North Korea. They should enjoy complementary protection.

While China and North Korea have signed bilateral border agreements that provide for North Korean escapees to be repatriated, China is still bound by the non-refoulement norms contained in the Refugee Convention and Torture Convention. These are jus cogens norms, from which no derogation is allowed.  As such, in these circumstances, the provisions of these bilateral border agreements pertaining to repatriation cannot be followed under international law.

Lee Jae Myung, who is the favourite to be South Korea’s next President, is known as a friend of China who supports engagement with the North Korean regime, and is unlikely to pressure the Chinese government to change its repatriation policy. Even if he did, pressure from South Korea alone historically has not been enough. South Korean officials have been demanding that China cease the repatriation program for years. It is therefore incumbent on the international community to maintain a spotlight on China’s practice. One can only hope that eventually the Chinese side realises that its role in sending North Korean escapees back to suffer torture and abuse is harming China’s reputation and leadership role in the region.

Rejecting the Korean accusation that the EU was seeking to illegitimately ‘harmonise’ labour standards, the Panel carefully analysed the principles established under international law. This entailed examination of Korean trade union legislation, the Trade Union and Labour Relations Act 1997 (the TULRAA), with reference to key international instruments, drawing on findings of UN treaty bodies and the ILO Committee on Freedom of Association (CFA).

The Panel paid attention to law ‘in practice’, which is always crucial to industrial relations. One of the EU’s claims, namely that registration of trade unions was treated as a discretionary matter for administrators, was ultimately rejected. This rejection was due to a Korean Constitutional Court judgment stating that (when certain requirements were met) registration was mandatory. However, the Panel noted that while this was the de jure position, evidence submitted to the Panel cast doubt on whether this was the case de facto and recommended ‘continued consultation’ on the matter.

The Panel was able more confidently to uphold three of the EU’s claims recommending that the following laws be brought into conformity with the principles of freedom of association:

Article 2(1) of the TULRAA, which excluded from the Act’s definition of ‘worker’ the self-employed, dismissed and unemployed;

Article 2(4)(d) of the TULRAA, which disallowed a union from certification under the Act if it permitted non-workers to join and remain members; and

Article 23(1) of the TULRAA which required that trade union officials could only be elected from amongst the trade union membership.

On the first issue, the Panel drew on the ILO CFA jurisprudence, which makes clear the entitlement of self-employed workers to form and join trade unions, an entitlement evident from Convention No. 87, but also flowing from ILO constitutional guarantees. The Report appreciated that the bilateral employment relationship required for identification as a ‘worker’ by the TULRAA ‘would exclude self-employed workers with numerous different clients, and so-called platform workers whose tasks are delivered to them via automated means and who may be legally defined as entrepreneurs’, offering a reminder of current concerns regarding collective representation of those engaged in gig economy work. The Korean statutory approach is also contrary to ILO CFA principles which state that those engaged in the ‘liberal professionals’, whose source of income is unlikely to be ‘mainly dependent upon a specific employer’, should be eligible to claim freedom of association rights.

The Panel further noted the dangers of preventing those dismissed and then unemployed from being able to remain members of their trade union, which has also been highlighted by the ILO CFA. This concern with vulnerability to dismissal led to expression of the Panel’s concern with its consequences under Article 2(4)(d) in terms of access to union certification (if a union continued to represent dismissed workers as members). Linked to this was the inability of a trade union official to continue in their role in an enterprise union if dismissed, by virtue of Article 23(1) of the TULRAA. While Korea argued that there was separate protection from discrimination on grounds of trade union membership and activities, the legislative architecture was exposed as highly problematic. The argument that it was more democratic for those working for an employer to be trade union officials in enterprise unions (and that the same requirements were not imposed in regard of other unions) was unconvincing. While Korea argued that it is actively now seeking to reform the TULRAA on this point, more needed to be done to convince the Panel that those reforms were likely to remedy their concerns.

Of course, the findings in this Report are only binding between the parties, with ILO soft law on freedom of association being given binding force by Article 13.4.3, but this Report may nevertheless be seen as a trend towards recognition of wide-ranging entitlements to freedom of association, not dependent on identification of an employment relationship. Of course, the other elephant in room, is that although the Panel recognises the Parties’ obligations regarding freedom of association as ‘legally binding’ under the EU-FTA, there is no enforcement process beyond the Panel report. An improvement would be to integrate Chapter 13 into the dispute settlement process applicable to the body of the FTA, so that the threat of trade sanctions can be meaningfully applied to prompt the legislative reform recommended by the Expert Panel.

On 11 April 2019, the Constitutional Court took the first step toward ending this blanket prohibition with the Case on the Crime of Abortion [2017Hun-Ba127, April 11, 2019] (slightly abbreviated version available in English here). In a seven to two ruling, the Court declared the current law to be non-conforming with the Constitution, but left it in place until the end of 2020, in order to give the legislature time to revise the law. The decision overruled the Court’s 2012 ruling in approval of the ban.

The petitioner was an obstetrician-gynecologist who had been indicted for performing 69 abortions from 2013 to 2015. While his case was pending at a lower court, he applied for constitutional review. The majority held that the abortion ban violated women’s right to self-determination, which the Court derived from the Article 10 protection of human dignity.

The leading opinion of four justices found the abortion ban non-conforming for two reasons. First, it ‘restricts a pregnant woman’s right to self-determination beyond the minimum extent necessary to achieve its legislative purpose’. Thus, it failed the principle of ‘least restrictive means’. The justices explained that in fact the legislative purpose of protecting foetal life was not being effectively protected by the ban, due to the paucity of prosecutions and the fact that the threat of criminal punishment thus had little effect on a woman’s decision to terminate her pregnancy.

Second, the Court found that the current law ‘tilts the balance of interests heavily in favour of the public interest in protecting foetal life by awarding absolute and unilateral superiority to it’, thereby violating the principle of proportionality. In particular, the Court stressed that the current ban on abortions did not sufficiently account for economic and social justifications for abortion, including concerns about continuing employment, studies and social activities, lack of child care resources, lack of a desire to continue a relationship with the partner and unwanted pregnancy of an unmarried minor woman.

Three other justices concurred with the leading opinion, while additionally arguing that the ban is unconstitutional, and should be immediately struck down for abortions prior to the 14th week of pregnancy.

The dissent, meanwhile, argued that a fetus has a constitutional right to life, and the abortion ban is a proportionate measure to protect this right.

The Court’s ruling very briefly mentions the regulation of abortion elsewhere in the world, including the UK and US, but does not engage in protracted comparative analysis. However, the reliance on proportionality follows a jurisprudential trend seen, for example, in Brazil, Colombia, and Portugal. Meanwhile, the emphasis on dignity and personal autonomy shows the more distant influence of US cases such as Planned Parenthood v Casey.

The Korean decision leaves significant uncertainties. One initial question is the effect on prosecutions before the end of 2020. The Gwangju District Prosecutors’ Office has recently asserted that it will suspend prosecution of all abortion cases within 12 weeks of gestation.

Legislators must also decide how to revise the law in order to bring it into compliance with the ruling. There will be contentious discussion around questions of whether a new bill will fully legalise abortions before a certain number of weeks (and if so how many weeks) or rather make them legal in certain conditions. Questions will also arise over national insurance coverage for the procedure. The first bill to be introduced after the judgment would fully legalise abortions at less than 14 weeks and allow abortions for ‘socio-economic reasons’ at between 14 and 22 weeks. Whatever the end result, it seems clear that Korea is embarking upon a new era of reproductive freedom.