Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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The Right Not to Work

Robert Steininger 

In the growing age of globalization and the rise in the use of technology, many have difficulties disconnecting from work. Smartphones have replaced the computer, the newspaper, the telephone, and much more. We are always connected, and that connection is just as tied to our employer as it is to our personal lives. Companies are starting to realize that their employees health and production have been negatively effected. One country has taken the initial steps necessary to reestablish the wall between employees’ personal and work life.[i]

On May 10, 2016, the French government used a constitutional provision to push through the El Khomri law. The law is named after Labor Minister Myriam El Khomri. Many provisions in the law were seen to benefit employers at the expense of employees, and therefore not welcomed by the French people. However, the most well liked article had the employees’ needs in mind. The law went into effect on January 1, 2017, in which France now requires employers to negotiate what rights their employees have to ignore work emails and other forms of communication. While the idea is commendable and its expected effects laudable, the complete lack of an enforceability mechanism in the law is an issue but that does not take away from the effect it can have on employees.

The right not to disconnect requires employers to negotiate what those specific rights would be for their employees, however, if the employer fails to do so, or breaks the terms of that right there is no mechanism to penalize the employer. This leaves employees in an odd place, they have a right but no means to enforce that right. It will be interesting to see if courts will take action if case is brought.

 

steininger_blog1_photo1[ii]

For the rest of the world, however, employees still have to dread whether that vibrating phone is a friend or their employer, which can increase their stress levels. This stress can lead to what experts are calling “digital exhaustion.”[iii] Employers have taken this researched and asked themselves to consider the effect that being tied to your email can have on the overall productivity of that employee. For example, the productivity levels in the United Kingdom are poor not only because U.K. citizens work the longest hours in Europe but also due to the fact that U.K. citizens are biggest users smart devices.[iv] Britons work an average of eight and half hours a day, which equates to 1677 average annual hours with £18.64 hourly productivity.[v] A Luxembourger, by comparison, works about 1643 average annual hours, with £45.71 hourly productivity.[vi]

While the average annual hours are relatively close, the hourly productivity numbers are drastically different. This could be because not only do Britons work longer hours, but also cannot disconnect from work once they leave. Although this study was looking at the number hours worked, it could be interesting to see how many hours Britons work when not on the clock. I suspect the average annual hours would rise and the amount hourly productivity would decrease even more. However, France and England are not the only countries facing this dilemma.

 

steininger_blog1_photo2[vii]

In 2015, a Japanese company, Dentsu, an employee committed suicide after working over 105 overtime hours in a month.[viii] In response, Tokyo’s governor ordered government employees to end their day by 8 PM.[ix] Additionally, Dentsu has since barred workers from putting in more than 65 hours of overtime a month. Japan may need to follow suit with France’s law to help further disconnect their over worked employees.

This issue of needing to disconnect can affect more than the happiness of the employees. In South Korea, employees are working so much that they are not taking time to have families. Thus, in response South Korea’s Ministry of Health introduced a monthly Family Day, where the office lights are turned off at 7 PM to encourage staff either to spend time with their families or to use that time to create a family. The Ministry had the goal of increasing South Korea low birth rate.[x]

  As globalization continues and as we stay more connected than ever, the labor laws of countries need to adapt. Employees are spending all their time increasing the profits of their employer without seeing added benefits for that work. Overall, countries need to realize that their citizenry are not there to be cogs in the machine, but to build their lives as they see fit, which means being able to have lives outside their employment.

Robert Steininger is a third year law student at the University of Baltimore School of Law.  (Candidate for J.D., May 2017).  He holds a Bachelors of Arts in Linguistics with a minor in Japanese from the University at Buffalo – SUNY.  As part of his international law studies, he took part in a winter study abroad program in Curaçao taking classes in European Union Economic law and Comparative Confession law.  He also studied in Japan at Konan University while completing his undergraduate degree. In addition to being a CICL fellow, Robert currently serves as the Volume V Managing Editor for the University of Baltimore’s Journal of International Law and the President of OUT Law.  He is also a Maryland Rule 19-217 Student Attorney with the Immigrant Rights Clinic. He is currently a Law Clerk at the American Federation of Government Employees, AFL-CIO.

 

[i] France ‘Right to Disconnect’ Law: Do We Need Rules to Reclaim Personal Time?, http://www.nbcnews.com/news/world/france-right-disconnect-law-do-we-need-rules-reclaim-personal-n704366

[ii] http://www.cultofmac.com/253917/apples-iphone-repair-guides/.

[iii] Id.

[iv] France ‘Right to Disconnect’ Law: Do We Need Rules To Reclaim Personal Time?

http://www.nbcnews.com/news/world/france-right-disconnect-law-do-we-need-rules-reclaim-personal-n704366

[v] The Most Productive Countries in the World Also Have the Shortest Work Days, https://www.indy100.com/article/the-most-productive-countries-in-the-world-also-have-the-shortest-work-days–ZJWJ1Vvw8Pb

[vi] Id.

[vii] JAMIE GRILL VIA GETTY IMAGES

[viii] France’s ‘Right to Disconnect’ and 4 Other Countries Trying to Improve Work-Life Balance, http://time.com/4620532/countries-work-life-balance/.

[ix] Id.

[x] Id.

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Stay in your Lane: South Korea and China Sea Disputes

Kia Roberts-Warren

It is no big surprise that China has a problem with respecting the territorial waters of others. Recently, the Permeant Court of Arbitration (“PCA”) ruled in favor of the Philippines; a proceeding that China did not participate in and has not abided by the PCA’s decision.  However, since the early 2000s South Korea has been dealing with China encroaching on its waters.[1] The water disputes are really between South Korea and Chinese fisherman who illegally fish in South Korea’s waters. Chinese fishermen have been illegally fishing in South Korea’s waters due to the depletion of seafood in their own waters and the increasing demand that the more prosperous Chinese population has to spend on seafood.[2] The South Korean Ministry of Defense reported that 520 Chinese fishing boats were caught for illegal fishing between January and May of this year and 120 instances in 2015.[3] The South Korea coastguard has reported from 2006-2011 about 2,600 seizures of Chinese fishing for illegal fishing.

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On October 9, 2015, two Chinese fishing boats slammed into a South Korean speedboat that was trying to remove the fishing boats from South Korean waters which caused the speedboat to sink. This resulted in several Chinese fishing boats to come armed with spear-like metal rods, but another coast guard vessel arrived and fired an assault rifle and a grenade launcher.[4] Fortunately, no one was injured or killed. However, about two weeks ago, the dispute turned deadly. A 17 crew Chinese fishing boat was found in South Korean waters by the South Korean coast guard. The coast guard stopped the boat on the grounds of poaching on South Korea’s waters. The crew members locked themselves in the steering cabin to resist questioning and searching of the vessel. In order to force the crew out of the cabin, the coast guards threw flashbang grenades into the cabin. The boat unexplainably caught fire. The coast guards were able to save 14 men. An investigation was launched to find out what caused the fire.[5]

This is not the first instance where illegal fishing has turned violent and deadly between the South Korean coast guard and Chinese fishermen. The escalation for violence is due to Chinese fishermen trying to escape arrest and fines for thousands of dollars. Chinese fisherman have been reported to be in possession of axes and steel pipes in order to prevent the South Korean coastguard officers from entering aboard. Also, Chinese ships chain each other together to resist seizure. Moreover, they have taken advantage of the tensions between South and North Korea. They sometimes sign contracts in North Korea to cross the boundary into South Korean waters.[6]

robertswarren_blog2_photo2

The first instance of violence between both parties began in 2008, when a South Korean coastguard officer drowned after he was hit by a Chinese fisherman. In 2010, during a boat seizure a Chinese fisherman drowned and another disappeared when their ship sank after ramming into the South Korean patrol boat. In 2011, a South Korean coast guard was stabbed with glass by a Chinese fisherman trying to evade arrest.[7] After this incident, South Korea once again called on China to do something about its citizens. China responded that allegedly it was working on reducing the illegal fishing by instructing Chinese fisherman about the law and sometimes even physically restricting their boats from crossing into South Korean waters. However, as long as the fisherman can return to Chinese waters no penalties are imposed on them. In 2012, a Chinese fisherman was killed by a rubber bullet fired by a South Korean coast guard. And in 2014, during a vessel search by the South Korean coast guard, a Chinese captain died from a bullet wound from an altercation between the parties.[8]

SOUTH KOREA RETAILATES

The South Korean government expanded its fishing zone and hours on October 1st,  intended to help local fishermen increase their income as well as the struggles they have faced with Chinese fishing boats being there illegally.[9] This appears to be in response to the most recent incident and because South Korea has politely urged China, but to no avail, to deal with its fishermen illegally fishing. The new policy broadens the Yeonpyeong Island zone by 14 square kilometers to the west. Fisherman will be allowed to start fishing 30 minutes before sunrise and one hour after sunset during the months of April-May and October-November, all of which are the peak of crab season.[10] Furthermore, this past Tuesday, the South Korean made an announcement that their coast guard would start using force, this includes ramming into fishing vessels, and crews service weapons or individual weapons for those who try to violently resist.[11] South Korea has also began installing anti-trawl devices on the seafloor near the border which would foul up Chinese fishermen’s nets.

LEGAL REMEDIES?

China has raised concerns that South Korea’s actions of using law enforcement as a violation of the bilateral fishing treaty in force by both parties. China has also made official comments in the past about South Korea using fair and non-prejudicial treatment and procedure when it comes to detaining and questioning of its nationals. Under international law, some of the deaths of its Chinese nationals in past disputes may rise to damages only if South Korea has failed to prevent an unlawful death or injury cause by agents of the state.[12] However, South Korea doesn’t have the same possibility. This is because the fishermen are private individuals and the deaths happened in South Korea’s waters.

robertswarren_blog2_photo3

China may also have another claim to the expansion of South Korea expanding its territorial waters if South Korea actually has mechanisms in place to make this policy effective. States are given 12 nautical miles as their territorial waters. Under the Law of Sea there is nothing that allows a State to expand its waters. However, if China wants South Korea to conform to the Law of the Sea convention it would first have to respect the decision of the PCA and cease its activities in the South China Sea.

There may also be some liability to South Korea if the anti-trawl devices are a violation to the ocean and maritime law in general. However, since anti-trawl devices are a new invention it may take the international community some time to decide upon it.

South Korea could bring North Korea before the ICJ because of its violation of its State obligations to South Korea. The North Korean government is allowing Chinese private citizens to use its territory to violate their obligations to South Korea. However, there are questions that remain: would North Korea appear? Would North Korea accept the decision of the ICJ?

The liability issues involving all three States also are entangled with politics as well so one of these countries taking legal actions is very unlikely as well because their relationships are fragile.

Kia Roberts-Warren is a 3L at UB Law. She is concentrating in international law. Kia graduated from Temple University receiving a BA in East Asian Studies during that time she spent a semester in Tokyo, Japan. Kia has an interest in international trade and human rights. She is also interested in fashion law and art law in the international context. Last year, she held the position of Career Development Director of the International Law Society and participated in the 2016 Philip C. Jessup Moot Court Competition. She recently attended UB’s Aberdeen Summer Abroad Program.  

[1] http://en.koreaportal.com/articles/23168/20161003/south-korea-expands-fishing-zone-to-prevent-illegal-chinese-fishing-in-the-area.htm

[2] http://foreignpolicy.com/2016/10/12/beijing-tells-seoul-to-stay-calm-and-carry-on-after-chinese-fishermen-sink-a-south-korean-coast-guard-boat/

[3] http://foreignpolicy.com/2016/10/12/beijing-tells-seoul-to-stay-calm-and-carry-on-after-chinese-fishermen-sink-a-south-korean-coast-guard-boat/

[4] http://thediplomat.com/2016/10/south-korea-sees-frictions-with-chinas-maritime-militia-whats-next/

[5] http://www.nytimes.com/2016/10/01/world/asia/south-korea-china-fishermen-deaths.html?_r=0

[6] http://foreignpolicy.com/2016/10/12/beijing-tells-seoul-to-stay-calm-and-carry-on-after-chinese-fishermen-sink-a-south-korean-coast-guard-boat/

[7] http://www.nytimes.com/2011/12/13/world/asia/chinese-fisherman-kills-south-korean-coast-guardsman.html

 

[8] http://www.nytimes.com/2016/10/01/world/asia/south-korea-china-fishermen-deaths.html?_r=0

[9] http://en.koreaportal.com/articles/23168/20161003/south-korea-expands-fishing-zone-to-prevent-illegal-chinese-fishing-in-the-area.htm

[10] http://en.koreaportal.com/articles/23168/20161003/south-korea-expands-fishing-zone-to-prevent-illegal-chinese-fishing-in-the-area.htm

[11] http://www.maritime-executive.com/article/south-korea-to-respond-to-illegal-fishing-with-force

[12] http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1168&context=auilr


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North Korea: Actions, Not Words

Christian Kim

On February 7, 2016, North Korea drew heavy criticism from the United Nations by launching the Taepo Dong 3, a long-ranged missile.(1)  North Korea’s defense to the launch was that this was not a sign of aggression but, rather, a peaceful satellite test.(2)  This was not the first time that North Korea launched a missile test.  North Korea launched seven separate missile tests ever 1993, three of which occurred in the past four years.(3)  Although the first series of missile tests were unsuccessful, North Korea their success rate increases with every launch.  The missile test prior to the Taepo Dong 3 had the capability of reaching 10,000km, with the potential to target over 38% of the United States.(4)  With Taepo Dong 3, the coverage extended to 13,000km, allowing North Korea to target as far as New York City and Washington D.C. (5)

CK Blog 2_Photo1

The international community needs to take North Korea’s recent missile launch as a serious threat.  North Korea has consistently spewed hostile rhetoric of annihilating the United States, as well as the “puppets” of the United States, South Korea. (6)  Further indication that the Taepo Dong 3 missile test was far from innocent is North Korea’s past acts of aggression towards South Korea.   Even though the two Koreas signed an armistice agreement in 1953, they are still technically at war.(7)  In 2002, North Korea launched a surprise attack on a South Korean vessel, resulting in the death of six South Korean sailors.  (8)  In 2010, North Korea sunk the Cheonan, a South Korean naval vessel, in the Yellow Sea.(9)  Over 46 sailors were killed in this belligerent attack from the North.(10)  Despite North Korea’s denial of these attacks, South Korea had proof that North Korea was responsible.(11)   Almost eight months after the sinking of the Cheonan, North Korea unleashed an artillery attack on Yeonpyeong Island, destroying over 70 buildings and killing two South Korean soldiers as well as two civilians.(12)

CK Blog 2_Photo2

Although the United Nations Security Council unanimously condemned North Korea’s long-range missile test, this condemnation along with their proposed economic sanctions will not change North Korea’s attitude.(13)  Past economic sanctions on luxury items were unsuccessful because the North Korean regime managed to smuggle luxury items in through their biggest ally, China.(14)  Even though China’s relationship with North Korea has significantly deteriorated in the past few years, they still consider each other as important allies.  This is evident in the amount of trading that goes on between the two countries: 57% of North Korea’s imports and 42% of their exports are with China.(15)  It is unlikely that China will follow in the steps of the international community since China will have a lot to lose if they agree to the economic sanctions.  To convince China will take a lot more than simple persuasion and the change will not occur overnight.  For now, the most immediate step the international community can take is to convince South Korea to shut down the Kaesong Industrial Park indefinitely and to continue blasting anti-North Korean messages on their DMZ loudspeakers.

The Kaesong Industrial Park (“Kaesong”) is a joint economic collaboration between North and South Korea.  Kaesong is located in North Korea, approximately six miles north from the Demilitarized Zone.(16)  Over a hundred South Korean companies set up factories in Kaesong to employ over 50,000 North Korean workers.(17)  These North Korean workers work for a significantly cheaper wage than their Southern counterparts, so this is a profitable venture for the South Korean companies.(18)  Even though the South Korean companies pay wages directly to the North Korean workers, these workers are forced by the North Korean government to give the majority of their pay to the government.(19)  As a result, the North Korean government sees this region as a very important source of income.  There have been proposals in the past to have watchdogs ensure that wages stay with the Kaesong employees; however, the Kaesong employees were picked by the regime for their loyalty.(20)  It does not matter how many measures South Korea takes to ensure the wages go where they belong, it will eventually end up financing the very programs that South Korea is adamantly against. Although South Korea has pulled out of the Kaesong complex because of Taepo Dong 3 missile test, this is most likely a temporary decision.  Kaesong has been prone to shut downs and re-openings depending on the fluctuating tensions on the Korean peninsula.(21)  As soon as North Korea “apologizes” in regards to the missile test, it is almost certain that South Korea will restart operations at Kaesong.  Since these South Korean companies are indirectly financing the North Korean regime’s missile and nuclear tests, the South Korean government should step in and force these companies to shut down their operations in Kaesong indefinitely.  Even though the indefinite shut down of Kaesong will dampen the relations on the Korean peninsula, North Korea will realize that their neighbors down South are done playing games.

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While shutting down Kaesong indefinitely is one solution, restarting the DMZ loudspeakers would be an even better move.  In 2015, two South Korean soldiers were injured by landmines while patrolling the DMZ.(22)  These bombs were planted by North Korean soldiers with the intent to harm South Korean soldiers.  Once again, North Korea denied any involvement and refused to apologize.(23)  In response, the South Korean government reactivated their loudspeakers on the DMZ border.(24)  These loudspeakers can be heard up to 7.5 miles past the DMZ during the day and almost 15 miles past the DMZ at night.(25)  The loudspeakers are a source of concern for the North Korean government since news is broadcasted that the regime has attempted to keep from its citizens.(26)  These broadcasts, often, highlight the reality of the terrible conditions in North Korea.  At other times, the loudspeakers blast news stories from daily lives in the South or K-Pop music.(27)  North Korea has constantly threatened to fire at these loudspeakers, but were warned by the South that any attacks would be reciprocated.(28)  In order to have the South Korean government turn off the speakers, North Korea begrudgingly agreed to claim their sorrow at the South Korean soldiers’ injuries.(29)  Even though this wasn’t the best apology one could have hoped for, it was nevertheless an apology from a country that rarely acknowledges their mistakes.  If these loudspeakers made North Korea agree to take responsibility for the planted bombs, perhaps the continuation of these loudspeakers could make the North fess up to their “peaceful” missile tests and to take action against any future tests.

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Whether or not China agrees to apply economic sanctions to North Korea, the first step for the international community is to urge South Korea to take immediate action against the North.  Once South Korea has implemented the previously suggested measures, the next step should be for the entire international community to place harsh economic sanctions on North Korea.  Aside from medical and food sanctions, the international community should place a ban on any trade of non-essential goods.  The North Korean regime relies on the idea of self-reliance (“Juche”). If the citizens of North Korea realize that the government is no longer self-sufficient, the North Korean regime’s façade of a successful country will deteriorate.  When this realization occurs, the regime will have no choice but to listen to the demands of the international community.

Christian Kim is a 2L at the University of Baltimore School of Law and graduated from the University of Maryland with a Bachelor of Arts in Criminal Justice. He currently serves as the President of the Asian Pacific American Law Student Association as well as the 2L Rep for the Student Bar Association. His interests are East Asian politics, international conflicts, and human rights.  Before Law School, Christian has worked for the Korean Ministry of Education as a TaLK (Teach and Learn in Korea) Scholar and Coordinator for two years. He is currently a legal intern at the Hermina Law Group and a law clerk for the Law Office ofHayley Tamburello.

(1) http://www.usatoday.com/story/news/world/2016/02/07/north-korea-missile/79963198/#

(2) http://www.usnews.com/news/articles/2016-02-08/north-korean-missile-launch-prompts-new-calls-for-sanctions-tough-response

(3) http://www.bbc.co.uk/news/world-asia-pacific-15278612

(4) http://www.cnsnews.com/commentary/bruce-klingner/north-koreas-missile-launch-shows-it-could-target-us-homeland

(5) Id.

(6) http://www.theguardian.com/world/2016/jan/09/north-korea-says-souths-propaganda-broadcasts-taking-it-to-brink-of-war

(7) http://www.bbc.com/news/10165796

(8) https://medium.com/war-is-boring/north-koreas-history-of-violence-b9af3d35c17a#.rvt3ch8e0

(9) http://www.bbc.com/news/world-asia-32013750

(10) Id.

(11) http://www.bbc.com/news/10130909

(12) http://www.theguardian.com/world/gallery/2010/nov/24/south-korea-north-korea-pictures

(13) http://www.cnn.com/2016/02/07/asia/north-korea-rocket-launch-window/

(14) http://www.huffingtonpost.com/2013/03/20/north-korea-sanctions-luxury-goods_n_2910005.html

(15) http://www.anser.org/babrief_nk-economy-feature

(16) http://www.bbc.com/news/business-22011178

(17) Id.

(18) Id.

(19) http://www.rfa.org/english/news/korea/north-koreans-make-less-money-than-their-counterparts-at-kaesong-08142015164241.html

(20) http://www.cnn.com/2013/04/09/business/north-korea-economy-explainer/

(21) http://www.cbsnews.com/news/north-south-korea-resume-work-at-joint-kaesong-industrial-park-after-5-month-shutdown/

(22) http://www.dailymail.co.uk/news/article-3192103/South-Korea-accuses-North-Korea-planting-landmines-maimed-two-soldiers-patrolling-volatile-border-threatens-make-Pyongyang-pay-harsh-price.html

(23) Id.

(24) http://www.thestar.com/news/world/2015/08/17/north-and-south-korea-turn-up-loudspeakers-to-blare-propaganda-at-each-other.html

(25) http://www.bbc.com/news/world-asia-35278451

(26) Id.

(27) Id.

(28) http://www.telegraph.co.uk/news/worldnews/asia/northkorea/11813728/North-Korea-attacks-South-Korea-military-border-unit-and-fires-shots-at-loudspeaker.html

(29) http://fox6now.com/2015/08/24/tensions-eased-as-northsouth-korea-reach-deal-on-apology-loudspeakers/