A STUDY ON THE INCAPACITATION MECHANISM MODEL OF THE JUCHIST AND MARXIST-LENINIST ARTICLES AGAINST THE CORE IMPLEMENTATION MECHANISM MODEL OF THE FUNDAMENTAL RIGHTS ARTICLES IN THE NORTH KOREAN CONSTITUTION: NORTH KOREA’S VIOLATIONS OF FUNDAMENTAL RIGHTS AND INTERNATIONAL HUMAN RIGHTS TREATIES By Woo-Suk Jun Submitted to the School of Law, University of Kansas in partial fulfillment of the requirements for the degree of Doctor of Juridical Science (S.J.D.) _________________________________________ Professor David J. Gottlieb (Chairperson) _________________________________________ Professor Jean K. Gilles Phillips (Member) _________________________________________ Ambassador (Ret.) David F. Lambertson (Member) _________________________________________ Professor Elizabeth S. Cateforis (Member) Date Defended: March 13, 2014 The Dissertation Committee for Woo-Suk Jun certifies that this is the approved version of the following dissertation: A STUDY ON THE INCAPACITATION MECHANISM MODEL OF THE JUCHIST AND MARXIST-LENINIST ARTICLES AGAINST THE CORE IMPLEMENTATION MECHANISM MODEL OF THE FUNDAMENTAL RIGHTS ARTICLES IN THE NORTH KOREAN CONSTITUTION: NORTH KOREA’S VIOLATIONS OF FUNDAMENTAL RIGHTS AND INTERNATIONAL HUMAN RIGHTS TREATIES _________________________________________ Professor David J. Gottlieb (Chairperson) Date approved: _________________________ ii ABSTRACT In this dissertation, I systematically study whether the arguments of the North Korean government regarding its protection of domestic human rights and its adherence to international human rights treaties in the DPRK Official Reports are accurate. My starting point is the analysis of the sharp conflict of argument on the human rights issue between North Korea and the liberal democratic camp, which includes the U.S., U.K., and South Korea. In the DPRK Official Reports, North Korea uses a theoretical approach, focusing on the presence of Fundamental Rights Articles of its Constitution, to argue that the fundamental rights of the people have been protected internally, and that the particular rights prescribed in the international human rights treaties are guaranteed successfully. In contrast, the liberal democratic camp, in their reports on North Korean human rights compliance, contend that the government of North Korea has seriously infringed the fundamental freedoms of its people and has severely violated the international human rights treaties to which it is party. To make their arguments about North Korea’s human rights practices, the U.S., South Korea, and the U.K. use a factual approach, centering on the analyses of testimony by North Korean refugees in the report. iii This situation leads the North Korean government to aggressively rebuff the arguments of the U.S., U.K., and South Korea by denying and discounting the contents of their annual reports. North Korea especially concentrates on casting doubt on the credibility of the testimony. Notably, the LDC Annual Reports do not thoroughly analyze the core implementation mechanism of the Fundamental Rights Articles of the North Korean Constitution and contain very few logical rebuttals. However, considering that North Korea has attempted to deceive the world under the guise of claiming to provide human rights protections through its core implementation mechanism, the methodology of the liberal democratic camp in dealing with North Korea’s claims in defense of its human rights practices is inarguably unsuccessful. Thus, in such a debate, a neutral third party, who does not possess actual information regarding the human rights situation in North Korea, may not only believe that North Korea’s arguments are true, but may also believe that the liberal democratic camp’s demand for an improvement of North Korea’s human rights practices are merely politically-motivated fabrications. Additionally, the fundamental difference in the method of argumentation between the North Korean government and the liberal democratic countries means that there are necessarily few points of direct collision within their arguments. That is to say, these two opposing sides do not actually collide iv but run parallel, and are left without the real opportunity to challenge each other’s arguments as to the fundamental difference between their methodologies. The most effective way to solve the problems inherent in the overreliance by the LDC on a factual approach is to form an opposition structure of a theoretical approach to match the theoretical approach of North Korea. To remedy this failure, I developed and formulated my own detailed theory to refute the assertions of North Korea in its official reports. The heart of the theory proposed by this dissertation is the incapacitation mechanism model of the Juchist and Marxist-Leninist Articles against the core implementation mechanism model of the Fundamental Rights Articles. The incapacitation mechanism model proves that all of the claims of North Korea in the DPRK Official Reports—that it guarantees the fundamental rights of its people or that it complies with the major international human rights treaties—are totally unrealizable, given its constitutional structure, from a theoretical standpoint. Additionally, the mechanism model proves that the liberal democratic countries’ arguments about North Korea’s violation of the fundamental rights and the international human rights treaties in the LDC Annual Reports, which are based on a factual approach, are true. Thus, we can draw an objective and logical conclusion to the central issue of this dissertation through the new refuting theory and its theoretical mechanism model proposed by this v dissertation. I expect the arguments of the new refuting theory and its incapacitation mechanism model presented by this dissertation to be useful reference material, which will enable the liberal democratic camp to make more effective responses against North Korea’s specious arguments grounded in the core implementation mechanism of the Fundamental Rights Articles in the DPRK Official Reports and official Implementation Reports to be released in the future. vi ACKNOWLEDGEMENTS “I will lift up my eyes to the mountains; From where shall my help come? My help comes from the LORD, Who made heaven and earth.” – Psalms 121:1–2 (New American Standard Bible) Most of all, I must frankly confess that everything in my life is the absolute grace of my Lord Jesus Christ. I would like to convey my immeasurable appreciation and eternal gratitude to Him for His infinite goodness and boundless loving-kindness. Six and a half years was not a short time. Furthermore, there were few preexisting research and precedent studies on the topic of my doctoral dissertation. However, I was very happy during these past six and half years, because I was always able to receive not only the excellent guidance and comments but also insightful advice and suggestions for my dissertation from Professor David Gottlieb, my dissertation supervisor and the Chair of my Dissertation Committee. Additionally, he was always generous with warm words of encouragement and words of consolation for me. It was indeed one of the greatest blessings in my life to have a great scholar on international human rights law, constitutional law and administrative law like Professor Gottlieb as my dissertation advisor. He is a role model for me and will be my mentor, always. I am sincerely grateful to him for my academic achievement and everything he has done for me. My deep and true appreciation also goes to Ambassador David Lambertson, vii Professor Jean Phillips and Professor Elizabeth Cateforis. Ambassador Lambertson is an eminent expert on North Korea and the Korean Peninsula, as well as East Asian and Pacific affairs. Professor Phillips and Professor Cateforis are also distinguished legal scholars and internationally recognized professors. They generously served as members of my Dissertation Committee in spite of their busy schedules. They also gave me their invaluable comments, constructive input and thoughtful suggestions. Once again, I would like to convey my personal appreciation to all of them. I do not want to forget to tender my deep gratitude to Dean Stephen Mazza, Associate Dean for International and Comparative Law Raj Bhala and Professor John Head. They have always treated me far better than I am worthy of. In addition, they always showed their keen interest in all of the S.J.D. students at the University of Kansas School of Law (KU Law), including myself and gave their steadfast encouragement to us. I will always be thankful for their deep understanding of international students and their warm encouragement. I am sure I would not have completed my doctoral dissertation and passed the final oral examination successfully without the love, sacrifice and support of my family. My parents, my wife and daughter were always there for me during the hard times and difficult moments. I would like to deeply and sincerely thank my father Mr. Myeong- Ho Jun and my mother Ms. Kyeong-Ja Her for their limitless love, unconditional sacrifice and heartiest wishes. I would also like to express my true appreciation to my wife HyunJung Yoon and my daughter YeEun Jun (Grace Jun) for their steadfast love and support. I am truly and deeply indebted to the following people who have always remembered me in their intercessory prayers: My mother-in-law, Ms. Kyeong-Ok Jang; viii my eldest sister So-Young Jun and her family; my second eldest sister Lydia Park and her family in Federal Way, Washington; Pastor Young-Wan Yoo at Heaven Central