Dear Ms.

Malmström
Brussels, 14 May 2018

Concerns regarding European Commission’s statements around the 6th meeting of the Civil Society Forum in
connection with the EU-Korea Free Trade Agreement

We are writing to express our dismay at statements made by a representative of the European Commission (EC)
regarding the cases of Korean Confederation of Trade Unions (KCTU) former President Han Sang-Gyun and KCTU
former General Secretary Young-Joo Lee that were raised during the 6th meeting of the Civil Society Forum.
Ms. Tuininga, DG trade official, stated that the two cases of incarceration fall outside of the scope of the EU-Korea Free
Trade Agreement (FTA), that the detention of Mr. Han and Ms. Lee “is in line with the Korean law” and that
positioning otherwise would amount to an interference in internal affairs and the judicial system of South Korea. In the
same spirit, in response to a joint ETUC/ITUC letter, you wrote in your letter dated March 19, 2018, that “the EU-
Korea FTA provides no legal basis for intervening in judicial processes of the other party.”
We are deeply disappointed about these misguided statements. They reveal a misconception of international law,
represent a serious denial of EU law and policies, and are clearly prejudicial to all of DG trade’s efforts in recent years
to take human rights into account in the context of the free trade agreements (FTAs).
The cases of Mr. Han and Ms. Lee have been raised at the UN and the ILO. In an opinion issued in April 2017, the UN
Working Group on Arbitrary Detention (WGAD) declared “[t]he deprivation of liberty of Sang-gyun Han, being in
contravention of articles 9, 19 and 20 of the Universal Declaration of Human Rights and articles 9, 19 and 21 of the
International Covenant on Civil and Political Rights, is arbitrary.” The Working Group then requested the government
of the Republic of Korea “to take the steps necessary to remedy the situation of Mr. Han without delay and bring it into
conformity with the relevant international norms, including those set out in the Universal Declaration of Human Rights
and the Covenant.” The WGAD additionally underlined “the factual similarities between the cases of Mr. Han and Ms.
Lee.” 1 The UN made it then clear that the South Korean government’s actions were not in line with its international
obligations, namely under the ICCPR ratified by Korea, and in consequence asked the authorities to remedy the
situation.
The ILO tripartite Committee on Freedom of Assembly also took a clear position on the above-referenced cases. In
October 2017, the Committee expressly requested the Korean government “to take any measures in its power for the
release of Mr. Han and all other trade unionists, if any, still in detention for the organization of the 14 November 2015
demonstration or peaceful participation therein.” 2The legal basis of its opinion leaves no space for any consideration
that raising these cases amount to an intervention in internal affairs. Indeed, as stated by the ILO body, “by virtue of its
Constitution, the ILO was established to promote freedom of association and the matters dealt with by the Organization
in this connection no longer fall within the exclusive sphere of States and the action taken by the Organization for the
purpose cannot be considered to be interference in internal affairs, since it falls within the terms of reference that the
ILO has received from its Members with a view to attaining the aims assigned to it.” “Complaints lodged with the
Committee can be submitted whether or not the country concerned has ratified the freedom of association
Conventions.” “The mandate of the Committee consists in determining whether any given legislation or practice
complies with the principles of freedom of association and collective bargaining laid down in the relevant
Conventions.” The Committee’s mandate “stems directly from the fundamental aims and purposes set out in the ILO
Constitution.” 3 Article 2 of the ILO Declaration on Fundamental Principles actually states that “all Members, even if

1
Opinions adopted by the Working Group on Arbitrary Detention at its seventy-eighth session, 19-28 April
2017, Opinion No. 22/2017 concerning Sang-gyun Han and Young-joo Lee (Republic of Korea):
http://www.ohchr.org/Documents/Issues/Detention/Opinions/Session78/A_HRC_WGAD_2017_22.pdf.
In its opinion, the WGAD also discussed the case of Ms. Lee, who had been living in self-imposed house
arrest at the KCTU headquarters in Seoul since December 2015 in order to avoid being arrested by police in connection
with her participation in a 14 November 2015 demonstration. She was eventually arrested and detained in December
2017. While at that time the WGAD was unable to express an opinion in relation to Lee’s case because the arrest
warrant against her had not been served and she was not being detained, it noted the “factual similarities” between Han
and Lee’s cases and recalled that the South Korean government had a responsibility to prevent arbitrary arrest and
detention in the context of peaceful assemblies
2
ILO Committee on Freedom of Association, Report No 383, October 2017.
3
ILO, Freedom of Association, Digest of decisions and principles of the Freedom of Association Committee
they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the
Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles
concerning the fundamental rights which are the subject of those Conventions.”
Interference in internal affairs cannot be claimed when a State is required to respect its international obligations. 4
Government responsibility to respect international obligations extends to all authorities, including the judiciary. The
CFA made this clear in our case.
The cases of Mr. Han and Ms. Lee are moreover within the mandates of the Domestic Advisory Groups (DAGs) and the
CSF. Article 13.4 of the EU-Korea FTA states that “[t]he Parties, in accordance with the obligations deriving from
membership of the ILO and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up […]
commit to respecting, promoting and realising, in their laws and practices, the principles concerning the fundamental
rights, namely freedom of association and the effective recognition of the right to collective bargaining.” Articles 13.12
and 13.13, expressly set up DAGs “with the task of advising on the implementation of this Chapter” and the CSF “to
conduct a dialogue encompassing [these] sustainable development aspects.” 5
The EU is undermining the credibility and efficiency of the monitoring mechanism set up in its FTAs by publicly
denying to take action with regard to cases that are within the mandates of DAGs and the CSF.
This is even more concerning with respect to the position recently taken by the EU on how to improve the
implementation and enforcement of Trade and Sustainable Development chapters in FTAs. The EC stated that “social
partners in particular, have a special role in organizing and monitoring of the labour markets and working rights” and
that “[u]nder EU FTAs, the implementation of commitments is ensured through the monitoring roles of the dedicated
government bodies (TSD Committee and the Trade Committee) and the civil society structures (Domestic Advisory
Groups and Civil Society Forums). Where a party fails to comply with a commitment, the other party can resort to the
dispute settlement mechanism, including recourse to the independent panel procedure leading to a public report with
recommendations. This step is yet to be tested in practice. In order to improve compliance with commitments, the
Commission services will be more assertive [emphasis added] in making full use of the existing range of tools and
mechanisms available.” 6
It is then imperative that the EC respects international law and does not invoke interfering in internal affairs and judicial
processes of other parties to an FTA, when it clearly has committed to raise such violations and act on them.
We respectfully ask to receive an assurance that the EC has correctly raised the cases of Mr. Han and Ms. Lee with the
South Korean authorities, for example during the EU-Korea Committee on Trade and Sustainable Development (CTSD)
on 13 April, 2018. We also urge the Commission to address a letter to the South Korean government to demand the
immediate and unconditional release of Mr. Han Sang-Gyun and Ms. Young-Joo Lee, specifying that their detention is
contrary to South Korea's international obligations.
Thank you for your attention to this important matter.
Sincerely yours,

Sharan Burrow, ITUC General Secretary

Carr Liina, Confederal Secretary, European Trade Union Confederation (ETUC)
Dusepulchre Gaelle, Permanent representative to the EU, International Federation for Human Rights (FIDH)

of the Governing Body of the ILO, Fifth (revised) edition, 2006, § 2, 5, 6, 8:

http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_090632.pdf.
4
Droit d'ingérence ou obligation de réaction non armée? Les possibilités d’actions non armées visant à
assurer le respect des droits de la personne face au principe de non-ingérence, Olivier Corten, Pierre Klein, RBDI,
1990/2: http://rbdi.bruylant.be/public/modele/rbdi/content/files/RBDI%201990/RBDI%201990-
2/Etudes/RBDI%201990.2%20-%20pp.%20368%20%C3%A0%20440%20-
%20Olivier%20Corten%20et%20Pierre%20Klein.pdf.
5
13.12 “Each Party shall establish a Domestic Advisory Group(s) on sustainable development (environment
and labour) with the task of advising on the implementation of this Chapter and 13.13 « Members of Domestic
Advisory Group(s) of each Party will meet at a Civil Society Forum in order to conduct a dialogue encompassing
sustainable development aspects of trade relations between the Parties ».”
6
Non paper of the Commission services, Feedback and way forward on improving the implementation and
enforcement of Trade and Sustainable Development chapters in EU Free Trade Agreements, 26 February 2018:
http://trade.ec.europa.eu/doclib/docs/2018/february/tradoc_156618.pdf.