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Litigating Labor Rights Across a Demilitarized Zone: The South Korean Constitutional Court As a Forum to Address Labor Violations in North Korea's Kaesong Special Economic Zone
I. INTRODUCTION
An hour's car ride from Seoul into the demilitarized zone that divides the Korean Peninsula into North and South Korea Ues possibly the world's most heavily guarded Special Economic Zone ("SEZ").1 The SEZ is comprised of a collection of factories, ringed by security fences. This fortress of factories is the Kaesong Industrial Park ("Kaesong"), the posterchild of North Korea's "capitatisi experiment."3 Opened in 2004, Kaesong boasts the sponsorship of the South Korean government and South Korean companies such as Hyundai Asan.4 Work at Kaesong combines South Korean technology and know-how with North Korean labor.The South Korean government sees Kaesong as the embodiment of South Korea's earnest efforts in overcoming the legacy of the Cold War and pursuing a policy of reconciliation and cooperation with North Korea. South Korea hopes that this economic partnership will push North Korea toward economic reform and greater openness to the world.7 For both Koreas, Kaesong also represents a cornerstone in the efforts towards the eventual reunification of South and North Korea8 into the ethnically homogeneous "Korean nation."Recently, this particular inter-Korean relationship has drawn criticism for egregious labor rights violations in Kaesong. Rights activists claim that the North Korean government cheats the workers by not giving them their full pay, by expecting them to work unpaid overtime, and by barring them from forming labor unions.10 The United States government has labeled the workers "trafficking victims"11 and claimed that Kaesong demonstrates that South Korea economically supports the repressive Kim Jong-Il regime.The starting point of this Comment is the following statement on Kaesong made by Human Rights Watch: "Seoul (and Pyongyang alike) must ensure basic rights and protections of the North Korean workers."13 This Comment argues that a judicial mandate from the South Korean Constitutional Court can compel the South Korean government to recognize the North Korean workers' rights. The court has authority to extend its jurisdiction over Kaesong workers. South Korean constitutional law offers North Korean workers the opportunity to make a constitutional petition based on an equal protection claim in the Constitutional Court. By granting this petition, the court can compel the South Korean government to recognize the workers' rights and hold the offending South Korean corporations accountable through regulations and sanctions.However, filing this petition in South Korea is no straightforward task. The workers are physically restricted to North Korean territory by the North Korean state. Procedural barriers inherent in the South Korean legal system compound this practical ...See the full content of this document
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