Kyung-ok Do
Introduction
Prompted by North Korea’s fourth nuclear test on January 6, 2016, and the launch of its long-range missiles on February 7, the UN Security Council unanimously adopted Resolution 2270 on March 2.1 This resolution not only reinforced existing measures but also included a number of new measures. Furthermore, before and after the adoption of Resolution 2270, South Korea, Japan, the United States, and the European Union announced unilateral sanctions against North Korea. Amid the international communi- ty’s attention on the effects and substantial implementation of sanctions against North Korea, North Korea conducted its fifth nuclear test on September 9, 2016. The Security Council strength- ened its sanctions regime against North Korea by unanimously adopting Resolution 2321 on November 30, 2016.2 South Korea, Japan and the United States announced additional sanctions on North Korea in December 2016.
1 UN Doc. S/RES/2270 (2016).
2 UN Doc. S/RES/2321 (2016).
144 Kyung-ok Do
Although North Korea’s nuclear and missile development directly triggered these international responses, they also referenced North Korean people or North Korean human rights. UN Security Council Resolutions 2270 and 2321 expressed deep concern about the grave hardship to which the North Koreans were subject. The resolutions also expressed great concern that revenues generated by North Korea’s arms sales paid for the pursuit of nuclear weapons and ballistic missiles, while North Korean citizens’ needs were greatly unmet. The United States also set one of the purposes of its North Korea Sanctions and Policy Enhancement Act of 2016 as “to ease the suffering of the people of North Korea.” Title II and Title III of the act provide for sanctions against North Korean human rights abuses and the promotion of North Korean human rights. For its part, the South Korean government did not explicitly include such references in its sanctions, but it has strived to strengthen sanctions while emphasizing the need to improve human rights in North Korea. However, given that the aim of sanctions is to cause harm in order to induce changes, it is difficult to envision a sanction, whether imposed on a particular state or an individual, that has no adverse effects on individual human rights. Assuming that sanctions are indeed effective, sanctions regimes pose a human rights dilemma in that stronger sanctions increase the economic burden for citizens of the sanctioned state. This dilemma may deteriorate if one of the aims of imposing sanctions includes improving the human rights situation of the target state.
The purpose of this chapter is to analyze how sanctions infring- ing individual human rights can be addressed under international human rights law and further draw implications applicable to the case of sanctions against North Korea. Prior to the analysis, it is important to emphasize that this chapter does not question the legitimacy of sanctions as an instrument to enforce international law
or as a response to human rights violations.3 Nevertheless, there appears to be a broad consensus that whether applied multilaterally or unilaterally, sanctions must be imposed with some legal limita- tions. Of those legal limitations, the applicability of international human rights standards is the focus of this chapter. First, the chapter will discuss the general effects of sanctions on human rights. Then it will examine the extent to which contemporary international law can limit the sanctions that may have a negative impact on individ- ual human rights. Finally, it will conclude with implications con- cerning present sanctions against North Korea.
The Impact of Sanctions on Human Rights Comprehensive Sanctions and Targeted Sanctions
The primary responsibility of the Security Council is to maintain international peace and security. To this end, the Security Council determines the existence of any threat to the peace, breach of the peace, or act of aggression and makes recommendations or takes decisions on nonmilitary or military measures, in accordance with Article 41 or Article 42.4 Of these, the nonmilitary measures speci- fied in Article 41 are generally referred to as “UN sanctions.” These types of sanctions include the complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication and the severance of diplomatic relations.5 From the mid-1940s to the early 1990s, these types of
3 However, it should be noted that the legality of sanctions is a frequently debated topic under international law. Whereas in the case of sanctions by the Security Council, the scope of its authority is the main point of contention, in the case of unilateral sanctions by states, some see those sanctions as impermissible under international law. For example, Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (New York: Frederick A. Praeger, 1964), 733; Erika de Wet, The Chapter VII Powers of the United Nations Security Council (Oxford: Hart Publishing, 2004), 136; Alexander Orakhelashivili, “The Impact of Unilateral EU Economic Sanctions on the UN Collective Security Framework: The Case of Iran and Syria,” in Economic Sanctions under International Law, eds. Ali Z. Marossi and Marisa R. Bassett (Hague: Springer, 2015); Rahmat Mohamad, “Unilateral Sanctions in International Law: A Quest for Legality,” in Economic Sanctions under International Law, eds. Ali Z. Marossi and Marisa R. Bassett (Hague: Springer, 2015).
4 Article 39 of the UN Charter.
5 Article 41 of the UN Charter.
146 Kyung-ok Do
sanctions were rarely imposed. The only instances of UN sanctions were against Southern Rhodesia in 1966 and South Africa in 1977.
However, cases of UN sanctions drastically increased after the end of the Cold War.
In most cases, sanctions that began as limited embargoes have gradually been extended to become comprehensive sanctions. Only in the case of Iraq in 1990 did the Security Council immediately introduce comprehensive sanctions.6 Under Resolution 661, the Security Council prohibited member states from importing any product from Iraq or Kuwait and engaging in activities that might promote exports from Iraq or Kuwait. The resolution also suspended the sale and supply of all products, except medicine or food provided for humanitarian purposes, and prohibited the supply of funds and resources toward the Iraqi government or companies, with the excep- tion of those intended for humanitarian aid.7 However, the imple- mentation of comprehensive sanctions led to serious economic ramifications for the general public and subsequent political and social costs. The Iraqi government, NGOs, and UN officials brought to light the deprivation experienced by the Iraqi people, eventually leading the international community to skepticism about compre- hensive sanctions. Accordingly, the Security Council has increasingly used targeted sanctions, which are imposed not on the state but rather on individuals with the power to affect policy or direct account- ability for the situation at hand. This type of sanction, which mainly freezes assets, bans travel, and embargoes arms, is also referred to as
“smart sanctions.” Because of human rights concerns, as well as humanitarian implications, individual states have also resorted to tar- geted or smart sanctions in imposing unilateral sanctions.
The Impact of Comprehensive Sanctions on Human Rights In most cases, comprehensive sanctions have the greatest impact on economic, social, and cultural rights (ESC rights), such as the right to food, the right to health, and the right to an adequate
6 Henry G. Schermers and Niels M. Blokker, International Institutional Law:
Unity within Diversity, 5th ed. (Leiden: Martinus Nijhoff Publishers, 2011), 937.
7 UN Doc. S/RES/661 (1990).
standard of living, recognized in the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The General Comment No. 8 on the relationship between economic sanctions and respect for the ESC rights adopted by the Committee on Eco- nomic, Social, and Cultural Rights (CESCR) states:
While the impact of sanctions varies from one case to another, the Committee is aware that they almost always have a dra- matic impact on the rights recognized in the Covenant. Thus, for example, they often cause significant disruption in the dis- tribution of food, pharmaceuticals and sanitation supplies, jeopardize the quality of food and the availability of clean drinking water, severely interfere with the functioning of basic health and education systems, and undermine the right to work. In addition, their unintended consequences can include reinforcement of the power of oppressive élites, the emer- gence, almost invariably, of a black market and the generation of huge windfall profits for the privileged élites which manage it, enhancement of the control of the governing élites over the population at large, and restriction of opportunities to seek asylum or to manifest political opposition. While the phe- nomena mentioned in the preceding sentence are essentially political in nature, they also have a major additional impact on the enjoyment of economic, social and cultural rights.8
In 2000, the negative effects of comprehensive sanctions on human rights were also addressed by the Sub-Commission on the Promotion and Protection of Human Rights of the UN Commis- sion on Human Rights.9 Its working paper examined the upshot of sanctions on Iraq, Burundi, and Cuba. The three cases have not only provoked international controversy but are also exemplary of Secu- rity Council sanctions, regionally imposed sanctions, and unilater-
8 UN CESCR General Comment, no. 8 (1997), para. 3.
9 Marc Bossuyt, “The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights,” Working paper prepared for the Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, UN Doc.
E/CN.4/Sub.2/2000/33 (2000).
148 Kyung-ok Do
ally imposed sanctions. The working paper concluded that Iraqi sanctions instigated a “humanitarian disaster comparable to the worst catastrophes of the past decade,” with an increase in child mortality rates, the lack of food, and collapse of the medical system ultimately sweeping aside the ESC rights of the Iraqi people.10 This sanctions regime against Iraq was found to be unequivocally illegal under existing international humanitarian law and human rights law.11 Likewise, in the case of Burundi, serious shortages of fuel, spare parts, medicines, and fertilizers led to drastic price increases and inflation. Commerce and industry were paralyzed by the lack of raw material and spare parts, unemployment skyrocketed, and income plummeted. Agriculture also suffered because of the short- age of seeds and fertilizers.12 Such a sanction was also deemed illegal under international law.13 Finally, in the case of Cuba, the US embargo, combined with pressure from other countries, posed seri- ous difficulties for the citizens of Cuba. In particular, health and nutrition were the two primary victims of sanctions.14 It has been argued that US sanctions have violated human rights law on two accounts. First, the US status as a major regional economic power and the main source of new medicines and technologies meant deprivations that impinged on Cubans’ human rights; second, the United States attempted, through various acts passed in the past decade, to extra-territorialize its own foreign-trade policy.15 On the basis of this working paper, the Sub-Commission appealed to states to promptly terminate all aspects of sanctions regimes that adversely affected human rights, contravened international law, or conflicted with other norms of international law.16
Since then, the United Nations has continued to discuss the effects of sanctions on human rights with a particular focus on the legitimacy of unilateral sanctions from a human rights perspective.
10 Ibid., paras. 63–67.
11 Ibid., para. 71.
12 Ibid., paras. 79–82.
13 Ibid., para. 86.
14 Ibid., paras. 91–94.
15 Ibid., paras. 98–100.
16 UN Doc. E/CN.4/Sub.2/2000/L.33 (2000).
A study by the Office of the United Nations High Commissioner for Human Rights (OHCHR) in 2012, requested by the Human Rights Council (HRC), is one example.17 The study concluded that unilat- eral economic sanctions may have negative effects on the target state’s general public, especially on the vulnerable class:
The primary victims of these measures are often the most vul- nerable classes, including women, children, the infirm and older person, as well as the poor. These groups suffer more acutely as a result of denial of access to life-saving equipment and medications, basic food products and educational equip- ment. Others are prevented from joining the job market…
This seems to indicate that unilateral coercive measures often have negative impacts that appear to disproportionately affect the poor and the vulnerable, the very persons for whom human rights principles seek to provide particular safeguards.18
Nevertheless, it is not easy to assess the harmful effects on human rights of sanctions that target a whole economy rather than particu- lar individuals, unless the case at hand is extreme, like Iraq. Multiple factors may cause the general public’s economic suffering, and sanc- tions may be no more than one of those factors. The issue becomes more complicated when the relevant state is the target of both mul- tilateral and unilateral sanctions, because it is difficult to separate out the impact of respective sanctions. While it is possible to assert that “comprehensive sanctions, whether imposed by the Security Council or unilaterally, have negative impacts on the human rights of the general public,” it is difficult to argue that a particular type of sanction violates individual human rights.
17 OHCHR, Thematic Study of the Office of the United Nations High Commissioner for Human Rights on the Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights, Including Recommendations on Actions Aimed at Ending Such Measures, UN Doc. A/HRC/19/33 (2012).
18 Ibid., para. 32.
150 Kyung-ok Do
The Impact of Targeted Sanctions on Human Rights
Although targeted sanctions emerged as an alternative measure to address the disadvantages of comprehensive sanctions, it also led to new problems concerning human rights. This issue drew interna- tional attention with the Security Council’s adoption of Resolution 1267 in 1999.19 The 1267 sanctions regime required member states to freeze assets, restrict travel, and embargo arms of specifically des- ignated individuals and entities associated with Al-Qaeda and the Taliban. However, the 1267 committee did not grant the listed indi- viduals an opportunity to respond. As a result, individuals with no connections to Al-Qaeda or the Taliban were designated as targets of sanctions. Some individuals filed lawsuits in domestic and regional courts claiming that their rights had been violated by measures implementing the resolution of the Security Council. In September 2008, the European Court of Justice (ECJ) became the first of the regional or international courts to acknowledge the court’s authority to evaluate the legitimacy of measures implementing the resolution of the Security Council. Furthermore, the ECJ ruled that the mea- sures adopted to implement the requirements under the 1267 sanc- tions regime infringed on the claimant’s certain fundamental rights, such as the right to be heard, the right to an effective legal remedy, and the right to property, and were therefore invalid.20
In particular, the lack of judicial protection was seen as a major shortcoming, and the Security Council created the Office of the Ombudsperson of the 1267 Committee to make up for the defi- ciency.21 The ombudsperson is an independent and impartial person who deals with requests from individuals to be removed from the sanctions list. While the creation of the ombudsperson’s position is a remarkable development, it has not solved the judicial protection problem because the ombudsperson only has the power to make
19 UN Doc. S/RES/1267 (1999).
20 Kadi v. Council and Commission, Case C-402/05 P & C-415/05 P (2008), paras. 348, 349, 369–371. For further analysis on the ECJ’s ruling in the Kadi case, see Kyung-ok Do, “UN Targeted Sanctions against Suspected Terrorists: with Special Reference to the Kadi Decision of the ECJ,” Seoul International Law Journal 17, no. 1(2010):
139–165 (in Korean).
21 UN Doc. S/RES/1904 (2009).
observations.22 What is more, the functioning of the ombudsperson is limited to the 1267 sanctions regime.
It seems that the controversy over targeted sanctions cannot be easily resolved under the rule of law and human rights standards.
Targeted sanctions may prevent indiscriminate impacts on the gen- eral economy, but they can still infringe on the rights of the selected targets: the freedom of movement set forth in Article 12 of the Inter- national Covenant on Civil and Political Rights (ICCPR) and Arti- cle 2 of Protocol 4 to the European Convention on Human Rights (ECHR); the right to property set forth in Article 1 of Protocol 1 to the ECHR; the right to privacy set forth in Article 17 of the ICCPR and Article 8 of the ECHR; and the right to a fair trial set forth in Article 14 of the ICCPR and Article 6 of the ECHR.23 The OHCHR also mentioned in the 2012 study that the targeted effect of such individualized sanctions may be more likely to violate indi- vidual rights than the more diffuse general trade sanctions.24 How- ever, when targeted sanctions are imposed to end gross human rights violations, it appears that the OHCHR prioritizes the human rights of the general public over those of the targeted few:
In particular, the positive impact that sanctions imposed with the objective of protecting human rights can be reasonably expected to have must outweigh the negative impact, taking into account the views of the population suffering under the human rights violations that gave rise to the sanctions and the impact on the most vulnerable parts of society. In this context, it has to be borne in mind that targeted sanctions aimed at applying pressure on specific decision-makers bearing respon- sibility for the human rights situation typically have a less harmful impact on the population as a whole than measures targeting the economy as a whole.25
22 Schermers and Blokker, supra note 6, 938, 939.
23 For further analysis, see Eugenia López-Jacoiste, “The UN Collective Security System and Its Relationship with Economic Sanctions and Human Rights,” Max Planck Yearbook of United Nations Law 14 (2010): 273–335.
24 OHCHR, supra note 17, para. 27.
25 Ibid., para. 38.
152 Kyung-ok Do
Human Rights as Legal Limits of Sanctions Limits for States
Whether comprehensive or targeted, sanctions can have far-reaching implications for human rights. In such cases, can international human rights law impose substantive legal limits on sanctions-im- posing entities, such as the Security Council or individual states?
Some experts argue that regulating sanctions through human rights law poses legal difficulties, because human rights law “is concerned with the relationship between States and those in their territorial domain and not with international relations.”26 In other words, they argue that a state is only responsible for persons or territories within its power or effective control under international law. However, especially in the case of ICESCR, others have argued for the intro- duction of an extraterritorial dimension of the ICESCR by the CESCR.27
Article 2, Paragraph 1, of the ICESCR stipulates that the ESC rights be realized through “international assistance and coopera- tion.” In contrast, Article 2, Paragraph 1 of the ICCPR identifies territory and jurisdiction as standards for application. This distinc- tion clearly shows the ICESCR drafters’ intent for its extraterritorial application. Article 2, Paragraph 1 of the ICESCR states:
Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the max- imum of its available resources, with a view to achieving pro- gressively the full realization of the rights recognized in the present Covenant by all appropriate means, including partic- ularly the adoption of legislative measures.
26 Nema Milaninia, “Jus ad bellum economicum and jus in belloeconomico: The Limits of Economic Sanctions under the Paradigm of International Humanitarian Law,” in Economic Sanctions under International Law, eds. Ali Z. Marossi and Marisa R. Bassett (Hague: Springer: 2015), 98, 99.
27 Paul de Waart, “Economic Sanctions Infringing Human Rights: Is There a Limit?,” in Economic Sanctions under International Law, eds. Ali Z. Marossi and Marisa R. Bassett (Hague: Springer, 2015), 143.