A STUDY ON ECONOMIC SANCTIONS: STRATEGY FOR THE NORTH KOREAN NUCLEAR AND HUMAN RIGHTS CRISES -INTERNATIONAL LAW PERSPECTIVE- A Dissertation Presented to the Faculty of the Graduate School of Cornell University in Partial Fulfillment of the Requirements for the Degree of Doctor of the Science of Law by Seung Jin Oh August 2008 © 2008 Seung Jin Oh A STUDY ON ECONOMIC SANCTIONS: STRATEGY FOR THE NORTH KOREAN NUCLEAR AND HUMAN RIGHTS CRISES -INTERNATIONAL LAW PERSPECTIVES- Seung Jin Oh, J.S.D. Cornell University 2008 North Korea has been criticized not only for manufacturing weapons of mass destruction but also for denying its people the most basic rights. In response to the North Korean crises, there have been two different approaches: economic sanctions or engagement. This study is to analyze whether and how the international community could change the North Korean behavior effectively under international norms. The U.N. Charter expressly contemplates that economic sanctions may be imposed in order to maintain or restore international peace and security. Sanctions under the United Nations can be imposed when there is a threat of or breach of the peace. If the Council determines gross violations of human rights as a threat to peace, it can play a pivotal role in protecting. Humanitarian causes limit the scope and types of economic sanctions. Economic sanctions are limited by humanitarian causes. Further, comprehensive economic sanctions are not effective. North Korea has an extremely authoritarian political structure and it would make economic sanctions less effective. Sanctions might contribute directly to the economic hardship of North Koreans. There is no hope that sanctions may strengthen NGOs, opposition groups or movements in North Korea. The elite and the military do not suffer while the rest of the population starves. On the other hand, economic engagement would strengthen reformer groups within the North Korean government, empower entrepreneurs, produce a middle class and interest groups, and eventually stimulate some form of civil society. Engagement with North Korea will weaken the regime’s authority to control the people. It would directly secure the right to food. Engagement expands the international community's alternatives. Engagement with North Korea should be encouraged. North Korea finds that the only way to ensure its security is to change its relationship with the U.S. from hostility to reconciliation. An effective international strategy to force North Korea to respect international norms is to fully engage the country. A package deal with North Korea can be considered. BIOGRAPHICAL SKETCH Seung Jin Oh was born in Jeju, South Korea in 1964. He passed Korean Bar Exam in 1986 before graduating from Seoul National University in 1987. He served 3 year military service as military attorney after 2 year legal training at Judicial Research and Training Institute under the Korean Supreme Court. After 11 year of legal practice in South Korea, he studied at Cornell Law School. His LLM degree encouraged him to study further in JSD program at Cornell Law School. His academic concern is public international law, international human rights law. iii To My Family iv ACKNOWLEDGMENTS My first thanks go to Cornell Law School for its academic and financial support. I will never forget the precious memory studying at Cornell. I would like to express my gratitude Professor Muna Ndulo. He has been a wonderful adviser. Without his encouragement, assistance and comments, this study would never have been completed. I learned a lot from him. And I wish to record my appreciation to other special committee members, Professor David Wippman and Winnie Tayor. I was lucky to have participated in their class and they gave me valuable advice for my project. It is my greatest fortune that I have those great scholars on my committee members. I want to express my special thanks to Charles Cramton, Assistant Dean of the Law School. He was always kind and ready to help me. Especially, I want to express my gratitude to Professor Boo Chan Kim and Seok Hyun Kim. They stimulated me to take up public international law as my major. I am greatly thankful to them. My wife In Sook, my daughter Lucia and my son John have been my source of strength and comfort. I thank and love them. v TABLE OF CONTENTS Biographical Sketch iii Dedication iv Acknowledgements v CHAPTER ONE: INTRODUCTION 1 1. Background of the North Korean Crises 1 2. Need for Comprehensive Policy Against North Korea 3 3. Sanctions or Engagement 3 4. Purpose of the Study 6 5. Methodology of the Study 10 CHAPTER TWO: NORTH KOREA: INTERNATIONAL CONCERN 12 1. Introduction 12 2. Act of Aggression 14 3. Weapons of Mass Destruction 15 4. Violations of Civil and Political Human Rights 17 4.1. Death Penalty 19 4.2. Right to Liberty 22 4.3. Right to Freedom of Movement and Freedom of Residence 25 4. 4. Right to Fair Trial 27 4. 5. Right to Privacy 28 4. 6. Freedom of Religion 30 vi 4. 7. Freedom of Expression 33 4. 8. Right of Political Participation 35 5. Economic, Social and Cultural Rights in North Korea 36 5. 1. Right to Work 36 5. 2. Right to Education 38 5. 3. Right to Food 39 6. Rights of Women 41 7. Rights of Child 43 8. North Korean Refugees 44 9. Conclusion 46 CHAPTER THREE: LEGALITY OF ECONOMIC SANCTIONS 48 1. Introduction 48 2. Economic Sanctions under the U.N. Charter 50 2. 1.Threat to the Peace 54 2. 2. Breach of the Peace and an Act of Aggression 55 2. 3. Human Rights Violations as “a Threat to the Peace” 56 3. Unilateral Economic Sanctions 62 3. 1. State Practice 62 3. 2. U.S. Legislative Authority 66 3. 2. 1. The Trading with the Enemy Act(TWEA) 66 3. 2. 2. The U.N. Participation Act(UNPA) 67 3. 2. 3. The International Emergency Economic Powers Act(IEEPA) 67 3. 2. 4. The Cuban Liberty and Democratic Solitary Act(CLDSA, Helms-Burton Act) 68 4. Humanitarian Limitations of Economic Sanctions 68 vii 4. 1. Right to Life 70 4. 2. Right to Food 72 5. Comprehensive or Smart Sanctions 75 6. Types of Economic Sanctions 78 6. 1. Financial Sanctions 79 6. 2. Trade Sanctions 80 6. 3. Aid Restriction 81 6. 4. Arms Sales Restriction 81 7. Conclusion 82 CHAPTER FOUR: EFFECTIVENSS OF ECONOMIC SANCTIONS 84 1. Introduction 84 1. 1. Definition of Effectiveness of Economic Sanctions 87 1. 2. Sanctions Effectiveness and Political Structure 89 2. The United Nations Sanctions against Iraq 91 2. 1. Economic Sanctions against Iraq 91 2. 2. Impact of the Economic Sanctions against Iraq 92 2. 3. Factors that Made the Sanctions Unsuccessful 93 3. The U.S. Economic Sanctions against Cuba 95 3. 1. Background of the Economic Sanctions against Cuba 95 3. 2. Impact of the Economic Sanctions against Cuba 97 3. 3. Factors that Made the Sanctions Unsuccessful 98 4. Economic Sanctions against Myanmar 99 4. 1. Human Rights Violations in Myanmar 99 4. 2. Sanctions by the International Community 99 4. 3. Impact of the Economic Sanctions against Myanmar 102 viii 4. 4. Factors that Made the Sanctions Unsuccessful 104 5. Sanctions against Apartheid in South Africa 104 5. 1. The Struggle of the International Community to Abolish Apartheid 104 5. 2. From Engagement to Sanctions 107 5. 3. Impact of the Sanctions against South Africa 110 5. 4. Factors that Made the Sanctions Effective 111 6. Conclusion 114 CHAPTER FIVE: EFFECTIVE STRATEGY REGARDING NORTH KOREA 117 1. Introduction 117 2. The Possible Goals of Economic Sanctions against North Korea 118 2. 1. War and Terrorism 118 2. 2. Weapons of Mass Destruction 119 2. 3. Violations of Human Rights 120 2. 3. 1. The General Assembly 122 2. 3. 2. The Security Council 123 3. Political Structure 125 3. 1. The Constitution of 1948 125 3. 2. The Constitution of 1972 126 3. 3. The Constitution of 1992 127 3. 4. The Constitution of 1998 127 4. The Juche Ideology 128 5. Relationship between North Korea and the International Community 130 6. No Possibility of Opposition Movement 133 7. Humanitarian Limitations of Economic Sanctions against North Korea 134 8. Alternative: Engagement 137 ix 8. 1. U.S. Engagement with China 139 8. 1. 1. From Hostility to Engagement 139 8. 1. 2. Impact on Human Rights 140 9. Limitations of Engagement Policy 143 10. Evaluation of the South Korean Engagement Policy 145 11. The Engagement is Necessary, but with Human Rights Components 147 12. North Korea’s Willingness to Accept Engagement 149 13. Conclusion 151 CHAPTER SIX: CONCLUSION 155 x CHAPTER ONE INTRODUCTION 1. Background of the North Korean Crises Until the 1990s, the Democratic People’s Republic of Korea (DPRK), or North Korea, had remained a silent and remote country. North Korea, however, had never been a primitive society. Bruce Cummings depicts Pyongyang of the 1980s as “one of the most efficient, best-run cities in Asia.” 1 Gavan McCormack describes North Korea as “a largely urban, highly educated society, and modern industrial state.” 2 Through the 1970s and 80s, the international community was more concerned with the human rights violations by the South Korean military regime rather than by those of North Korea. 3 During the Cold War, there was no evidence that the record of human rights violations in North Korea was worse than that of other comparable oppressive capitalist or communist countries. Through the 1990s, North Korean issues became a major part of the international agenda. These included such issues as nuclear and human rights violations. North Korea was often criticized not only for manufacturing nuclear weapons, abducting foreigners, terrorism, drug trafficking, and currency counterfeiting, but also for denying its people the most basic rights and freedoms, operating a comprehensive surveillance system, performing public executions and managing political prison camps.