Abstract
There is growing concern over the human rights situation of North Korean migrant workers. Related to the labour system under North Korea’s socialist planned economy, whereby the authorities have direct control over allocation of the labour force, the issue is also relevant to each host country’s protection of the rights of migrant workers. This article examines the human rights conditions of North Korean migrant workers, and assesses whether their situation amounts to slavery and forced labour from the perspective of international law. Through analysis of North Korea’s Socialist Labour Law and the country’s regime, which frames its labour structure, this article seeks to determine the root causes of the situation—and ultimately to invoke international cooperation for amelioration of the human rights of these workers.
Keywords
1. Introduction
There is growing concern within the international community over the human rights situation of North Korean migrant workers. Although there are no official statistics or accurate information available regarding the number of these workers or their destination countries, 1 it is generally estimated that more than 50,000 workers have been sent to Russia, China, Mongolia, Qatar and Kuwait, among other places. 2 The majority of them are known to work in construction sites, light industry factories, logging camps, and so on, at a lower wage than local workers. As harsh working conditions, exploitation of wages, and restraint and control of the workers’ lives by the North Korean authorities have been consistently noted in NGO and think-tank reports, 3 Marzuki Darusman, former UN Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea (DPRK), has drawn attention to this issue pending examination in future reports, noting that such working conditions may amount to forced labour. 4
The issue of the human rights of North Korean migrant workers is to be distinguished from the discussions held by the international community on ensuring the accountability of the North Korean leadership for systematic, widespread and gross human rights violations. 5 While the human rights situation of North Korean migrant workers derives from the overall labour structure of the DPRK, in which designated authorities have direct control over the labour force in the context of a socialist planned economy, it is also relevant to the system for protection of labour rights and human rights of migrant workers in the host countries where the workers are employed. 6 The former aspect necessitates improvement of the labour structure of the DPRK to accommodate international labour standards, whereas the latter requires the host State and employing company to respect and protect migrant workers’ human and labour rights.
This article aims to illustrate the human rights conditions of North Korean migrant workers, and to assess whether their situation amounts to slavery and forced labour from the perspective of international law. It analyses the laws framing the labour structure of the DPRK in order to identify the root cause of the problem. Based on this examination, the article seeks measures to improve the human rights conditions of North Korean workers abroad through international cooperation: by urging the DPRK to improve its labour structure, stressing the responsibility of the host State and employing company, and enhancing the protection of migrant workers.
2. Human rights conditions of north korean migrant workers
2.1. State export of labour
The DPRK began exporting labour in 1967 after concluding a Forest Agreement with the Soviet Union. 7 In an inheritance from Soviet days, cheap labour supplied by North Korean migrant workers under the tight control of the DPRK authorities met the needs of local authorities in the Russian Far-East region, who were short of labour but feared uncontrolled Asian immigration. 8 Although the largest numbers of North Korean workers are still located in Russia and China, the export region has been expanded to Africa, Central Asia and the Middle East. It is reported that North Korean workers have been sent to 27 countries in accordance with an order from the Supreme Leader in 2013 to export more than 10,000 workers per year, to secure the Party’s budget. 9 After requesting assignment to State institutions, State enterprises or social cooperative associations authorised to undertake foreign trade activities and send workers overseas, North Korean workers pass through national selection procedures which include a background review, physical examination and interview. 10 For individuals to be selected as migrant workers, they should have a sound background (Songbun, which is North Korea’s social classification system). Especially favoured are those who have Party membership and have completed military service. To prevent defection, they are required to have family members (in particular children) who reside in North Korea, and not to have relatives in the host country. However, the most influential factor is bribes paid to interviewers in the recruitment procedure. 11 Bribery also works in the selection of destination—where another factor is the physical examination, with fit young workers being chosen for regions with unfavourable weather, such as Middle Eastern construction sites. 12 Workers are generally sent for a term of three to five years, and the contract may be extended during the assignment period. There are also workers who reapply to work abroad after serving their term and returning home. With a track record of not defecting and having the economic power to bribe, reapplying workers are more likely to be selected. 13
North Korean overseas workers are in a different situation than migrant workers more generally, who tend to move abroad individually to find work. They are involved in a system of ‘labour export’ conducted at the State level and compliant with the socialist centrally planned economy, whereby the State authorities control assignment of the labour force based on the needs of the State. 14 Enterprises sending labourers abroad belong to the Worker’s Party of Korea, the Korean People’s Army, the Ministry of State Security or the Ministry of People’s Security, all known to be privileged State institutions. 15 Thus, the situation is one of ‘government-contracted labour’ in foreign countries. 16 The arrangement allows the DPRK government to exploit the money earned by the workers: most of their wages are retained or collected by the State companies that bring workers overseas. 17 The primary contract between the individual and the North Korean enterprise is a priori based on the citizen’s ‘duty to work’. 18 Thus, although a certain form of contract is made between the individual and their allocated enterprise, this is different from the labour contract as understood in a capitalist economy. 19 The labour relationship between employee and employer is based on the rights and obligations between the State and the individual, characterised as ‘cooperation between comrades’. 20 It is difficult to find accurate information about the details of the contract relationship between the host companies and North Korean workers. However, it seems that individuals are normally assigned to work for North Korean recruitment agencies having a base in the host country, which in turn sign labour service supply contracts with local companies. 21 Even in the rare testimony of individuals having a labour contract with a local company, it seems the worker was not engaged independently. 22 Due to the absence of a labour contract, or lack of knowledge on the content of such a contract, workers are not provided with details of working conditions. 23
2.2. Working environment and living conditions
The deteriorating human rights situation of North Koreans working overseas began to alarm the international community in the early 1990s due to the harsh working environment in Russian logging camps. 24 Subsequently, the UN Sub-Commission on the Promotion and Protection of Human Rights discussed the issue of North Korean workers abroad. However, the issue was not included in the first resolution on the human rights situation in the DPRK that the Sub-Commission adopted in 1997. 25 Although resolutions were adopted at the UN Human Rights Commission starting in 2003, 26 and further, a UN Special Rapporteur on the situation of human rights in the DPRK was designated in 2004, 27 most of the discussion has centred on civil and political rights violated within the DPRK. 28 The issue of North Korean workers abroad was again spotlighted in 2004, when the Czech Republic’s weekly magazine Respekt reported on North Korean workers in Czech factories. 29 In 2006, the US Department of State’s annual ‘Trafficking in Persons Report’ raised concerns about North Korean workers in the Czech Republic 30 and Mongolia. 31 In 2008, Human Rights Watch also expressed concerns about North Korean workers in Mongolia, noting that the two countries had reached an agreement allowing this employment. 32 It could not be ascertained that these workers enjoyed freedom of movement away from DPRK government minders and were not subject to other coercive labour practices. As such, subsequent reports placed North Korea in Tier 3 as a country whose government does not fully comply with the minimum standards and is not making significant efforts to do so. 33 Meanwhile, after the human rights situation in the DPRK became an agenda item for the international community with the release of the COI Report, the Asan Institute for Foreign Studies, a private think-tank in South Korea, published its own report ‘Beyond the UN COI Report on Human Rights in DPRK’ which included a chapter on the ‘slavery and forced labour’ of North Korean workers abroad. 34
The international community’s concerns over the human rights of North Korean overseas workers are based on findings that these people are working in hazardous conditions, restricted in movement and communication under the monitoring of minders, with their salaries appropriated and controlled by the North Korean authorities. In short, many North Korean workers perform labour under conditions indicative of forced labour. 35 In the case of the construction industry, where service is generally provided on a subcontract basis, the labourers work excessively long hours at hazardous temperatures, under the control of North Korean agencies rather than the local company. 36 As is the case within North Korea, their labour is conducted towards a ‘planned lot’ production target. Excessive toil is demanded without compliance with rights to rest, maximum working hours, or the local labour laws. 37 Offsite, the labourers live a group life in dormitories near the place of work, and are monitored by the North Korean labour recruitment agencies that provide translation and accommodation. 38 The workers are under the surveillance of minders dispatched by the North Korean authorities, mainly the Ministry of State Security. 39 Their identification is confiscated and kept by the controller. They have to move outside in groups of two or more, with approval. In case of deviation, labourers may face punishment or repatriation. 40 Through weekly evaluation meetings, the workers are taught that they are working for the Party funds and not for individual gain. In practice, the North Korean authorities commandeer a considerable portion of the worker’s salary in the name of the Party fund, loyalty fund or planned payment. Money is also deducted for company management expenses, accommodation costs, insurance fees and so on, leaving the individual workers with a fraction of the wage for their labour. 41
In sum, these workers suffer appalling working conditions, deprived of basic labour rights such as safe and healthy working conditions, reasonable limitation of working hours and the guarantee of periodic holidays. Due to exorbitant appropriation, they do not receive adequate remuneration for their work. The DPRK extends its centralised control system by restricting the right of workers abroad to liberty and security of the person. Their freedom of movement is strictly curtailed, and they remain under virtually constant surveillance, deprived of the right to freedom of opinion and of expression. They are also subject to arbitrary interference with their privacy, including through enforced group living. Such labour conditions are in violation of the right to just and favourable conditions of work and remuneration. 42 Despite all this, however, North Koreans aspire to work abroad, regarding it as a privilege and providing bribes to make their selection more likely. In their eyes, a job overseas could earn more than the ‘stipend for living expenses’ paid by enterprises within North Korea, due to the collapse of the public distribution system. It could also provide the chance to earn additional income by carrying out ‘favours’ requested individually outside the assigned workplace. Thus, an opportunity to work overseas is hugely attractive to many North Korean workers. 43 Indeed, people pour substantial effort and money into the selection process in the hopes of working abroad, and this calls for a more thorough examination of whether these workers are actually subject to ‘forced labour’ or, further, are in a state of ‘slavery’.
2.3. Risk of forced labour
Forced labour is defined as ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’. 44 According to this definition, forced labour constitutes three elements: i) work or service; ii) menace of penalty; and iii) the lack of voluntariness or volition. Penalty under this definition is not limited to criminal adjudication, but also includes the deprivation of rights and privileges. 45 Forced labour is not defined by the nature of the work being performed but rather by the nature of the relationship between the employer and the employee. 46 It can occur where work is coerced by individuals, by private enterprises or by State authorities. Valid consent is key in deciding whether there has been compulsion; but consent obtained fraudulently or made inoperative by intervening events is not counted. 47 Forced labour can also be considered to occur when it is against the labourer’s freedom of choice, even if the State controls labourers within the scope of its planned economic scheme and regulates the labour market for public purposes. 48 This reflects a provision embodied in the Abolition of Forced Labour Convention, which prohibits use of labour ‘as a method of mobilising and using labour for purposes of economic development’, regarding this as a form of forced labour. 49 Some kinds of work are exempt from this definition, such as work performed during lawful detention, in the military and in response to an emergency or normal civic obligations. 50
Findings on whether North Korean overseas workers are in fact subject to forced labour may differ depending on concrete factual determinations. It seems obvious that these labourers are working and living in appalling conditions. However, forced labour differs from exploitative working conditions per se. Given that volition serves as the primary criterion in determining whether North Korean workers abroad are trapped in a forced labour situation, it is difficult to find that all workers forcibly and involuntarily labour under the menace of penalty. 51 Moreover, the fact that their most severe punishment is repatriation supports the existence of volition, where working overseas is regarded as a privilege. Of course, under the Socialist Labour Law regime all North Korean citizens capable of labour are subject to the ‘duty to work’, and not reporting to an assigned occupational post or any unjustified leave of absence is punishable as ‘jobless hoodlum behaviour’. 52 Accordingly, all North Koreans may be deprived of the freedom to choose and change their occupation, and may be obliged to provide compulsory or forced labour against their will. However, labourers working overseas are in a different situation from the domestic population working under threat of punishment, as they are dispatched after voluntarily applying and going through a thorough selection procedure. The fact that volition may be structurally coerced by the collapse of the public distribution system may lead to the interpretation that potential violation of North Korean migrant workers’ human rights originates from the North Korean economic system. 53 Further, as one study argues, workers volunteering to work abroad may be deceived into thinking that they could earn a lot of money. 54 Yet given the strict interpretation of volition in determining forced labour, as well as considering that the harshest punishment is repatriation, 55 it would not seem they are working against their will, whatever the reason driving that will.
Even though the labour is prima facie initiated voluntarily, the International Labour Organisation (ILO) considers that it could become forced in the ensuing procedures. Indicators introduced by the ILO include debt bondage, withholding of wages, retention of passports, restriction of movement and abuse of vulnerability. 56 Almost all North Korean overseas workers begin their lives abroad with debt incurred by transport costs and visa fees, and they work unpaid for several months to reimburse these costs. 57 They depend on the North Korean enterprise not only for their job but also for housing and food. Moreover, due to lack of knowledge of the local language, and not having alternative options to living in a group, their vulnerable position may render such persons incapable of escaping from forced labour. 58 To sum up, practices such as restriction of movement enforced by supervisors, confiscation of identity documents and the debt automatically imposed upon arrival may force workers to continue to work against their will even if they initially volunteered to work abroad. Meanwhile, forced labour may meet the legal definition of slavery if the practice manifests any or all of the powers attached to the right of ownership. 59 Thus the question arises whether the situation of forced labour, or risk thereof, amounts to ‘enslavement’. 60
2.4. Is this ‘enslavement’?
Some news outlets have claimed that North Korean overseas labourers live in a ‘state of slavery’ 61 or indeed ‘State-sponsored slavery’. 62 Universally endorsed, 63 prohibition of slavery constitutes a jus cogens norm which is not derogable under any circumstances 64 and all States are obligated to eliminate this practice through direct action. 65 Furthermore, from the perspective of international criminal law, enslavement may amount to ‘crimes against humanity’ provided that it is ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’. 66
Article 1(1) of the Slavery Convention, adopted at the League of Nations in 1926, defined slavery as ‘the status or the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’ 67 : the purchase, transfer or inheritance of a person; or the absolute control over a person, their labour or the product of that labour. 68 Ownership was indeed the defining characteristic of slavery in historic abolition movements. 69 However, this definition did not cover the full range of practices related to slavery, or other equally repugnant forms of servitude. 70 The 1956 Supplementary Convention on the Abolition of Slavery thus reclassified servitude as an ‘institution and practice similar to slavery’, 71 specifically noting debt bondage, serfdom, servile forms of marriage, and the exploitation of children and adolescents. 72 Contemporary understanding extends to a variety of slavery-like practices—the exploitation of child labour, the use of children in armed conflict, and the exploitation of prostitution—that are generally perpetrated against the poorest and most vulnerable social groups and are largely clandestine. 73 In the modern context, the specific circumstances are crucial to identifying practices that constitute slavery, moving away from absolutes to consider the degree of restriction imposed, the degree of control over the individual’s personal belongings, the existence of informed consent and a full understanding of the nature of the relationship. 74
Precisely speaking, North Korean overseas labourers do not appear to be in a state of slavery, which is defined by destruction of the legal personality of a human being and is thus a more limited and technical concept relative to a state of servitude, which encompasses all types of dominance and control by one human being over another. 75 Although the North Korean enterprises exercise control over these workers, they do not exercise powers attached to the right of ownership—purchasing, selling, lending or bartering—thereby reducing the workers to the status of objects deprived of legal personality. 76 Enslavement as an element of crimes against humanity in the Rome Statute is also strictly interpreted as having exercise of the powers attached to the right of ownership. 77 Moreover, their voluntary application and fixed term, as well as their tendency to reapply for a subsequent term, 78 casts doubt over any assertion that the work of these labourers should be considered a type of slave labour or labour supplied subsequent to slave trading. 79
If not actually enslaved, are these workers in a ‘slavery-like condition’, given that a similar deprivation of liberty is imposed on them? 80 It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour. 81 The relationship between forced labour and slavery as well as slavery-like practice is, however, not always clear. 82 Article 5 of the Slavery Convention requires that necessary measures be taken to prevent forced labour from developing into conditions analogous to slavery. 83 Darusman, the UN Special Rapporteur, did in fact encourage the Special Rapporteur for the contemporary forms of slavery, including its causes and consequences, to consider the situation of North Korean migrant workers. 84 However, compared to other cases under investigation, mostly concerning women and children, the case of North Korean overseas workers shows distinctive features. 85 Furthermore, their situation cannot be categorised within the four types of institution and practice similar to slavery as defined in the 1956 Supplementary Convention. The employer–employee relationship between North Korean enterprises and workers, which is founded on the citizen’s duty to work regulated by domestic labour law that prohibits exploitation under socialist communism, is a further particularity of the case. Considering these circumstances, it would be hard to conclude that these overseas workers’ risk of forced labour would always suffice, or would so develop as to constitute slavery-like practice.
3. Shared responsibility to protect north korean migrant workers
3.1. Root cause: Unique aspects of North Korea’s labour structure
Fundamentally, the problem of North Korean migrant workers relates to the social nature of labour, in a system where the authorities have direct control and employment rights over the labour force. 86 The DPRK maintains a socialist planned economy system based on the collectivist principle. Article 34 of the Socialist Constitution of the DPRK declares that ‘[t]he national economy of the DPRK is a planned economy’ in which ‘the rights and duties of citizens are based on the collectivist principle, “One for all and all for one”’. 87 The understanding of ‘labour’ under the collectivist principle in North Korea differs from that of the international labour standards. Individual labourers in North Korea are ‘active revolutionaries for the realisation of the Communist ideals’ 88 whose labour is understood as ‘collectivist labour of the workers for a common aim and interest’. 89 As stipulated in Article 29, ‘Socialism and Communism are built by the creative labour of the working masses’. 90 Thus, the DPRK does not understand a ‘worker’ as an employee employed by an employer, but as an individual who performs his or her own work although conducting a planned or quantified assignment. 91 Meanwhile, as the labour relationship in North Korea does not conceptualise employer and employee as adversarial counterparts, there is no rationale supporting the formation of a collective and self-policed labour–management order. 92 As a necessary consequence, the basic labour rights (freedom of association, the right to collective bargaining) are not recognised in the DPRK. 93
Under the collectivist principle, North Korea’s labour structure presents two unique aspects: State-controlled labour assignment and a State-controlled remuneration system. In the DPRK, according to the notion that ‘[w]ork is a noble duty and honour of citizens’, 94 all citizens work as a matter of both ‘duty’ and ‘right’ assigned to State institutions, corporations or social cooperative associations. 95 In practice, emphasis is not on the right but the duty to work, and deviation from work is strictly regulated. 96 The presence of this penalty clause is worth noting, in counterpoint to the declaration of labour as most honourable and holy. 97 Meanwhile, as allocation of manpower in the economic sector is determined by the Administrative for Labour Force, the freedom to choose one’s occupation is inherently restricted. 98 After graduation, most people are assigned in a group to a workplace without consideration of the individual’s skill or preference. 99 Individual labour is understood as a resource of the State, and the State is endowed with exclusive power to allocate and organise the labour force. 100 As such, the Socialist Labour Law is framed to impose obligations upon workers, rather than to protect their rights. The basic form of compensation for working in the DPRK is a ‘living stipend’, provision of which is regulated by the Administrative for Labour Force. 101
North Korean migrant workers also are bound by the State-controlled labour assignment, remuneration and distribution system. Thus, exploitation of their wages may be understood in terms of the particularity of the DPRK’s economic system, and appropriation may be argued as a form of taxation by the State—albeit excessive. 102 North Korea being a socialist economy, its overseas workers are assigned to enterprises by the State and obliged to work in accordance with their duty. The argument may be put forward that, equivalent to the provision of a labour force, which is a collectively controlled resource of the State, their wages should be paid to the State. However, even within the context of North Korea’s ‘socialist cooperative economy’, the right to social distribution according to labour should be protected. As Article 37 of the Socialist Labour Law stipulates, the State should adhere to its principle of social distribution. 103 Under its Socialist Constitution, the State should provide for the working masses. Beyond alleviating concern about unemployment, it should render adequate compensation for work done. In practice, however, one’s unilateral ‘duty’ as a citizen is not matched by a corresponding ‘right’ to be protected by the State. As such, while an argument could be made that under the DPRK’s planned economy system there is a legal basis for the vast amount of appropriation by State authorities, it clearly infringes the individual’s right to receive fair and adequate remuneration for work pursuant to international human rights law. 104
3.2. Need to reform labour structure
In setting out to protect the human rights of North Korean workers abroad, the fundamental step is to cause the DPRK to overhaul its labour structure in compliance with international labour standards. Under the current labour system of the DPRK, human rights infringements can be summarised as in violation of the prohibition of forced labour, 105 and deprivation of the freedom to choose a job. 106 The international community has consistently raised the problem of labour structure in relation to human rights in the DPRK, and called upon the authorities of the DPRK to adhere to internationally recognised standards. 107 In 2004, the resolution adopted at the Commission on Human Rights called upon the government to consider as a matter of priority joining the ILO, and to become party to the 1930 ILO Convention concerning Forced or Compulsory Labour. 108 The General Assembly also expressed its serious concern over violations of workers’ rights, including the rights to freedom of association and collective bargaining, and the right to strike as defined by the obligations of the DPRK under the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). 109 Since 2008, strongly urging the DPRK to respect fully all human rights and fundamental freedoms, the General Assembly has recommended that the North Korean authorities ‘engage in cooperation with the International Labour Organisation’ with a view to significantly improving workers’ rights. 110 In 2015, the UN General Assembly took the further step of directly urging the DPRK ‘to become a member of the International Labour Organisation and consider ratifying all the relevant conventions’. 111 So far, however, such urgings have amounted to hollow condemnation on the part of the international community, and there can be no change until the authorities of the DPRK accept the recommendation. Meanwhile, this consideration fundamentally inquires whether international law obliges the State to adopt a regime consistent with the protection of labour rights, and the extent to which the sovereign State’s own discretion can be considered.
Indeed, international law does not prescribe a specific regime to be institutionalised within a sovereign State, and the economic structure by its nature falls within the discretion of the State. 112 This stance is reaffirmed and enhanced as the right given to respective States in the Nicaragua Case where the Court stated, ‘Every State possesses a fundamental right to choose and implement its own political, economic and social systems’. 113 Thus, it is difficult to argue that the DPRK’s Socialist Planned Economy is per se illegal or in violation of international law. The labour structure of the DPRK, which is related to its economic structure, is thus the subject of a fundamental and uneasy question. However, as has been noted by the Court, although a State’s domestic policy falls within its exclusive jurisdiction, this is subject to an additional condition: ‘that it does not violate any obligation of international law’. 114 Based on international human rights, in particular the prohibition on forced labour and protection of labour rights as fundamental human rights, it is possible to argue a violation infringing individual rights. As has been discussed, violation of the human rights and labour rights of North Korean migrant workers is fundamentally grounded in the unique labour structure of this socialist planned economy. The DPRK has neither joined the ILO nor signed any of its Conventions, and thus it is hard to push implementation of ensuing obligations. However, it is still possible to urge the DPRK to take steps to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the ICESCR. As a State party to the ICESCR, the DPRK needs to protect, ensure and promote labour rights. It needs to respect the freedom to choose an occupation, and the right to work in a favourable environment, through adoption of legislation and other necessary measures. As a State party to the International Covenant on Civil and Political Rights (‘ICCPR’), meanwhile, the DPRK is obliged to respect and ensure the rights recognised in the Covenant, including elimination of forced labour practice within its territory and subject to its jurisdiction, and to undertake steps to improve its labour structure.
3.3. Duty to prohibit forced labour practice
Every individual has the right to work, insofar as work is freely chosen or accepted, allowing him or her to live in dignity. The right to work contributes to the survival of the individual and his or her family, which is essential for realising other human rights and forms an inseparable and inherent part of human dignity. 115 Importantly, the right to work does not entail the obligation to work. Article 4 of the Universal Declaration of Human Rights (‘UDHR’) declared that ‘no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms’. 116 This is also prescribed in paragraphs 1 and 2 of Article 8 of the ICCPR, which obliges the State party in detail. Meanwhile, paragraph 3 of Article 8, section (a) prescribes that ‘no one shall be required to perform forced or compulsory labour’.
As a State party to the ICCPR, the DPRK is obliged to prohibit forced labour within its territory and jurisdiction in accordance with Article 8(3) of the Covenant. 117 The Special Rapporteur reminded the DPRK of its obligation under Article 8 of the ICCPR not to engage in forced labour. 118 The primary concern addresses labour practices in political prison camps, and labour punishment without due procedure and adjudication that goes beyond the scope normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention. However, as examined, North Korean overseas workers are also in a vulnerable situation at risk of forced labour. Meanwhile, the infringement of human rights of North Korean overseas workers raises the issue of extraterritorial application of international human rights covenants, as the act occurs within the jurisdiction of another country. In this case, as they are under the effective control of North Korean authorities, the State party’s obligation to recognise and ensure rights embodied in the ICCPR can be argued in accordance with extraterritorial application of the ICCPR. 119 Moreover, the issue is fundamentally related to the labour structure of the DPRK, which obliges citizens to work as a duty under the socialist planned economy. The ILO has noted that the State’s mobilisation and use of labour for purposes of economic development cannot be justified if it is against the will of the people, and thus it may fall under the form of forced labour that is prohibited. 120 Pursuant to the international labour standard, ‘duty to work’ embodied in Socialist Constitutional Law and Labour Law in the DPRK could be seen as the institutionalisation of forced labour exacted by the State. 121
In order to prevent the possibility of North Korean overseas workers being subjected to forced labour, active cooperation is needed from the host States. In 1998, the ILO designated eight conventions as fundamental, which deal with: i) the freedom of association and the effective recognition of the right to collective bargaining; ii) the elimination of all forms of forced or compulsory labour; iii) the effective abolition of child labour; and iv) the elimination of discrimination in respect of employment and occupation. 122 The ILO declared that all Members, even if they have not ratified the conventions in question, have an obligation arising from the very fact of membership to respect, to promote and to realise, in good faith in accordance with the ILO Constitution, the principles concerning the fundamental rights that are the subject of those conventions. 123 Furthermore, through the resolution in 2004, ILO member States confirmed that ‘all migrant workers also benefit from the protection offered by the ILO Declaration (1998) […] regardless of the status’. 124 Whereas North Korea is not a member of the ILO, the same is not true for most countries hosting North Korean workers, and in particular, Russia has ratified both conventions embodying fundamental principles on forced labour (ILO Convention Nos. 29 and 105). The basic obligation for a State that ratifies Convention No. 29 is to ‘suppress the use of forced or compulsory labour in all its forms’. 125 This implies an obligation neither to exact forced labour itself nor tolerate its exaction by others, and to punish the illegal exaction of forced labour as a penal offence. 126 The elimination of all forms of forced or compulsory labour is one of the fundamental labour principles and rights, and its prohibition is an established norm of customary international law. 127 Thus, where there is circumstantial evidence or feasibility that the circumstances of North Korean workers amount to forced labour, host States are obliged to take active measures to prevent such conduct. This obligation includes investigation and, if appropriate, prosecution of allegations of forced labour.
Companies hiring North Korean workers also have a responsibility to prevent forced labour practice. The Special Rapporteur has adjured such companies not to become complicit in an unacceptable system of forced labour, further stressing that ‘they should report any abuses to the local authorities, which have the obligation to investigate thoroughly, and end such partnership’. 128 Companies involved in forced labour may be directly liable for violations of domestic laws and regulations designed to prevent forced labour. Depending on the host State’s legislation, companies may have enforceable obligations to report on the risks of forced labour, and to report when such labour has been involved in their supply chains. In the case of Russia, the Constitution and Labour Code provide for the prohibition of forced labour within the territory, and administrative liability is imposed upon companies to pay a fine with regard to forced labour. However, there are no mandatory rules which oblige companies to check on their supply chains, or to report findings related to forced labour. 129 In practice, companies’ role in preventing forced labour depends on the existence of an adequate domestic legal framework, along with adequate penalties. Thus, robust law enforcement by the host State, supported by effective legislation, is an essential step to protect workers from forced labour.
3.4. Enhancing protection of migrant workers
Both host States and companies have a responsibility to protect North Korean migrant workers. Companies hiring these workers should respect their human rights, while countries should ensure that such companies comply with their corporate responsibilities. 130 The host State’s primary responsibility begins when migrant workers enter its territory and are subject to the protection of its labour law. 131 Migrant workers are entitled to the same fundamental workers’ rights as national workers, including safe and healthy working conditions and reasonable working hours. 132 In order to ensure that laws protecting migrant workers are enforced, there should be regular inspections of working and living conditions and supervision of compliance with employment contracts. 133 The company should also act with due diligence to avoid infringing human and labour rights, and address negative impacts of their activities. This responsibility includes actively reacting to the risk of forced labour, and prohibiting such labour involved in supply of the product. In the case of companies hiring North Korean workers, contracting directly with individual workers rather than with a supply company would assure a degree of control over their labour conditions and remuneration. The company may have the right to cancel or amend the contract if labour conditions do not meet local standards. In practice, it is reported that the Qatar construction industry fired North Korean migrant workers in May 2015 due to violation of local labour law. 134 Moreover, direct payment to individuals is a key issue for North Korean migrant workers. The host State’s ensuring a direct payment system may well constitute pragmatic means to protect migrant workers from non-payment. 135
As international cooperation is necessary to protect the human and labour rights of these workers, one approach is to encourage more States to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (‘Migrant Workers Convention’). The Migrant Workers Convention, which entered into force on 1 July 2003, constitutes one of the core international human rights treaties. Article 2(1) provides the most comprehensive definition of migrant worker: ‘a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national’. The Convention confirms that every migrant worker shall have the right to recognition everywhere as a person before the law. 136 Irrespective of their migratory status, all migrant workers shall enjoy treatment not less favourable than that which applies to nationals of the State, which includes the right to just and favourable conditions of work and to rest and leisure. 137 The Convention seeks to establish minimum standards that State Parties should apply to migrant workers and members of their family, and encourages appropriate action to prevent and eliminate clandestine movements and trafficking in migrant workers while at the same time ensuring the protection of their human rights. 138 Containing most of the substantive provisions of the ILO Conventions, the Convention goes further to provide more extensive rights for migrant workers. So far most of the countries hosting North Korea workers, such as Russia, China, Mongolia and Qatar, among others, have not signed the Convention. Accordingly, an obvious step is to encourage more countries to join the Convention, to amend their domestic labour laws, to expand the application of basic rights of workers to migrant workers, and to establish an effective mechanism for protecting human rights. 139 Although the situation of North Korean migrant workers has its particularity in the effective control of the national authorities, certain features such as the confiscation of workers’ passports by the employer resonate with issues faced by other migrant workers. Enhancing the normative framework for protection of migrant workers, therefore, would also benefit their North Korean counterparts.
All human rights are universal, indivisible, interdependent and inter-related. As a particular form of essential human rights, 140 labour rights provide grounds for the livelihood of individuals and their families and for fulfilment of other rights. In respect of the exploitation of labourers and deteriorating human rights conditions, the case of North Korean migrant workers is not an isolated instance, but one that could be replicated elsewhere. Migrant workers are categorised as persons especially vulnerable to forced labour, and in fact are frequently seriously exploited. 141 The host State must take all appropriate measures to ensure that migrant workers are not deprived of any rights derived from the principle of equal treatment by reason of any irregularity in their stay or employment, and this includes North Korean workers regardless of their particular status under the effective control of the DPRK authorities.
4. Conclusion
The DPRK is arguably the most isolated country in the world. Furthermore, a huge gap exists in the understanding of labour rights, associated with the regime’s socialist planned economy system. The (almost) universal perception on labour rights is incompatible with the DPRK’s own perception which regards citizen labourers as a resource of the regime under the principle of socialist collectivism. This fundamental problem extends to the human rights conditions of North Korean workers in foreign countries. Violation of the human rights of these overseas workers is an issue distinct from the discussions of the international community on ensuring accountability of the DPRK leadership for the systematic, widespread and grave violation of human rights within the country. The problems are institutionalised in the labour structure of the DPRK, on one hand, and associated with the host State’s policy and system for protection of migrant workers, on the other hand. Solving these problems, therefore, demands structural reform and improvements to enhance active protection. Mere condemnation, met with a short-term response of halting certain instances of malpractice, in the absence of a more fundamental and constructive approach, is not particularly helpful.
The issue can be approached in terms of its root causes deriving from the unique aspects of the DPRK’s labour structure, and addressed in a comprehensive manner with a constructive approach concerning the system and institutions causing and framing the problem. As for the labour environment at specific locations, the issue of each host State’s protection of migrant workers’ human and labour rights should be addressed. Likewise, the response to North Korean migrant workers’ human rights could be tailored according to each specific case, and it is essential to take a multidimensional approach in examining responsible actors to protect and ensure the human rights of these workers.
The issue of North Korean overseas workers should be given voice, in the sense that their situation requires international cooperation. Rather than moving to expel North Korean migrant workers, a more constructive approach would be to help bring them into compliance with international labour standards, as expulsion of these workers could effectively result in deprivation of their opportunity to work. The priority of the discourse should be on protection of the human rights of North Korean workers per se. A human-rights-centred approach should therefore focus on the protection of the individual’s right to work and ensuring that their working conditions meet international labour standards. Human rights discourse cannot be used to deprive people of the opportunity to work, if it really wants to be human rights discourse.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
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