Human Rights Watch issued a briefing paper in October 2006 that examined workers rights at a potential North Korean outward processing zone, the KIC.11 Because Human Rights Watch has not been permitted to visit the KIC, the paper was based on information provided by Korean authorities, Seoul-based experts on North Korean labor laws, others who have visited the KIC, our analysis of relevant academic writings, and our assessment of the labor law drafted specifically for the KIC. We found that although working conditions at the KIC likely compare favorably with most North Korean manufacturing facilities, the KIC lacks appropriate mechanisms to ensure effective labor law enforcement and falls far short of adopt[ing] and maintain[ing] in its statutes and regulations, and practices thereunder, the . . . rights, as stated in the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up (1998).
The vague administrative enforcement procedures established under the special labor law adopted for the KIC and the possibility of judicial enforcement through the North Korean justice system are insufficient to ensure labor law compliance at the KIC. The KIC Management Committee, a North Korean agency supervised by the North Korean Central Special District General Bureau for the Kaesong Industrial Complex (General Bureau), is charged with administrative enforcement of KIC labor law, and according to South Korean officials, makes regular monitoring visits to KIC worksites.12 The committee can, but is not required to, impose a fine of between $100 and $2000 on a violating employer or suspend that employers operations only if the employer has failed to heed prior committee warnings to remedy labor law infractions and the unlawful activity has resulted in serious consequence. The law does not define serious consequence, however, nor does it set forth guidelines for the committees exercise of its enforcement discretion, stating only that if workers or employers have opinions regarding penalties imposed, they can raise them with the KIC Management Committee or the General Bureau.13 As a result, KIC labor law is inadequate to prevent inconsistent and subjective enforcement decisions or impunity for labor law violations, especially in less egregious cases. Furthermore, the North Korean justice system, which in theory could provide a judicial alternative to the KIC Management Committees labor law enforcement and a forum for appealing committee decisions, is in practice, neither independent nor impartial and, in many cases, lacking even minimal due process guarantees.14 Therefore, North Korean courts cannot be relied on to provide workers a meaningful mechanism for fully enforcing their basic rights.
The KIC labor law is silent on workers rights to freedom of association and collective bargaining. The North Korean Foreign Enterprise Law, which provides a legal framework for foreign companies to operate in free economic and trade zones in the country and also governs working conditions at the KIC, does little better. The Foreign Enterprise Law states that workers in foreign enterprises can form unions, but it fails to establish even a minimal legal framework to guarantee that right, failing to ban anti-union discrimination or retaliation, prohibit employer interference in union activity, or require employers to bargain in good faith with workers representatives. The law also substantially limits the right to organize with the broad prohibition of any trade union that seriously endangers security or healthy public order, as determined by the North Korean state.15
Equally troubling are reports from Korean officials that the North Korean government, not the KIC workers, selects workers representatives, who are then subject to the approval of the Korean companies operating at the KIC. Such a system of government-selected, employer-approved worker representatives violates both workers internationally recognized right to elect representatives of their own choosing and the ban on state and employer interference in workers organizations.16
There are no unions or collective agreements at the KIC, in part due to the weak labor laws governing at the KIC, the state-imposed workers representatives, and the possibility of brutal retaliation for activities displeasing to North Korean authorities, such as independent labor organizing. According to an American businessman of Korean descent with investments in North Korea, who spoke with Human Rights Watch on condition of anonymity, there were also neither unions nor collective agreements at any of the factories he visited in North Korea as late as 2004. In August 2006, he told Human Rights Watch:
It was obvious to me that it didnt even occur to the workers that they could elect their own representatives or form a trade union. If you asked them what a strike is, they probably wont be able to answer the question. Even if they knew what it was, they were not able to act on it. The Workers Party decided everything for them.17
There is no known history of any independent worker organizing anywhere in North Korea. As a result, even if the right to freedom of association were adequately protected at the KIC, workers would likely be largely incapable of fully exercising it without extensive rights information and training, which they do not presently receive.18
KIC and other North Korean labor laws also fall short of adequately safeguarding against harmful child labor and employment and workplace discrimination. Neither the KIC labor law nor North Koreas general labor law, also in force at the KIC, ban hazardous child labor. And although the North Korean constitution establishes the right to equal rights in all spheres of state and public activity, neither the KIC labor law nor other labor laws in force at the KIC explicitly ban workplace and employment discrimination, including sexual harassment, or establish remedies for its victims. Without such a ban, North Korean women suffering these violations and attempting to seek justice through the inadequate labor law enforcement mechanisms available to them must clear the additional hurdle of demonstrating that the conduct runs afoul of the general constitutional anti-discrimination provision, a much more difficult legal case to make.19
11 Human Rights Watch, North Korea: Workers Rights at the Kaesong Industrial Complex.
13 KIC Labor Law, arts. 46, 49.
14 Korea Institute for National Unification, White Paper on Human Rights in North Korea, pp. 90-113.
15 Human Rights Watch, North Korea: Workers Rights at the Kaesong Industrial Complex, citing Second Periodic Report of the Democratic Peoples Republic of Korea on its implementation of the International Covenant on Civil and Political Rights, CCPR/C/PRK/2000/2, May 4, 2000.
16 ILO Convention 98 concerning the Right to Organise and Collective Bargaining states that workers and employers organizations shall enjoy adequate protection against any acts of interference by each other or each others agents or members in their establishment, functioning or administration. Similarly, ILO Convention 87 concerning Freedom of Association and Protection of the Right to Organise provides, Workers and employers organisations shall have the right to . . . elect their representatives in full freedom and public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. ILO Convention No. 98 concerning the Right to Organise and Collective Bargaining, adopted July 1, 1949, 96 U.N.T.S. 257, entered into force July 18, 1951, art. 2; ILO Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise, adopted July 9, 1948, 68 U.N.T.S. 17, entered into force July 4, 1950, art. 3.
17 Human Rights Watch, North Korea: Workers Rights at the Kaesong Industrial Complex, citing Human Rights Watch interview, identity withheld, Seoul, August 29, 2006.
18 See Human Rights Watch, North Korea: Workers Rights at the Kaesong Industrial Complex.
19 See Ibid.