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HUMAN RIGHTS QUARTERLY

Legal Mobilization for Human Rights


Protection in North Korea:
Furthering Discourse or Discord?
Patricia Goedde*
ABSTRACT
International human rights networks have publicized the exigencies of
human rights violations in North Korea and have mobilized international
and domestic laws as part of their respective movements to pressure North
Korea on human rights. This article asks how effective these attempts at
legal mobilization have been. While leveraging law has found success in
other parts of the world for human rights improvement, this article argues
that legal mobilization has had very limited impact in North Korea due to
larger political impediments such as denuclearization priorities, ideological
polarization between human rights groups, and North Korea's own counterdiscourse to human rights.

I.

INTRODUCTION
In our socialist society which regards man as most precious, human rights are firmly
guaranteed by law; even the slightest practice infringing upon them is not tolerated.
In our country all people's rights ranging from the rights to employment, food, clothing
and housing to the rights to free education and medical care are fully guaranteed.
-Kim Jong II, 5 May 19911

Patricia Goedde is an Assistant Professor at Sungkyunkwan University Law School in Seoul,

South Korea. Dr. Goedde received her J.D. and Ph.D. in Asian and Comparative Law at the
University of Washington (UW) School of Law, and M.A. in Korean Studies at the UW Jackson
School of International Studies. Dr. Goedde is a licensed attorney of the Washington State
Bar and has also practiced in Seoul with the law firm of Kwangjang (also known as Lee &
Ko).
KONcDAN OH & RALPH C. HAssic, NORTH KOREATHROUGH THE LOOKING GLASS 25 (2000).
1.

Human Rights Quarterly 32 (2010) 530-574 2010 by The Johns Hopkins University Press

2010

Legal Mobilization for Human Rights

This personal testimony attributed to North Korean leader Kim Jong II on the
firm legal protection of human rights in North Korea sits at odds with the rest
of the world. The United Nations General Assembly passed a resolution in
2008 censuring the dire situation of human rights violations in North Korea
(Democratic People's Republic of Korea, or "DPRK"). 2 International NGOs
such as Amnesty International and Human Rights Watch continue to publish inventories of human rights abuse in North Korea. 3 Meanwhile, North
Korean refugees steadily stream into South Korea with individual accounts
about their hardships back home.4
At first glance, international consensus seems clear on the status of human rights in North Korea. Human rights advocacy groups, both state and
nonstate, have mobilized campaigns calling for the improvement of human
rights in North Korea. Mobilization tactics include efforts such as building
alliances, promoting dialogue, resorting to laws, and other grassroots activities. However, closer inspection shows that this consensus ruptures in
strategic approach when dealing with human rights in North Korea. Factors
that frustrate a unified approach to addressing human rights in North Korea
include the sheer range of human rights abuses to tackle, denuclearization
priorities, ideological differences among NGOs, and the lack of constructive
response from within North Korea. The different ways that NGOs mobilize
international and domestic laws also illustrate this dissonance. The theory of
legal mobilization is a useful framework to compare and analyze the human
rights campaigns in the United States and in South Korea with respect to
North Korea, given the resort by various actors to enact domestic laws and
rely on international laws. By analyzing the activities toward lawmaking and
the implementation of relevant laws, it is possible to gain a more accurate
picture of how these actors and networks push the human rights agenda
and with what actual results. While transnational legal mobilization has had

2.

3.

4.

Situation of human rights in the Democratic People's Republic of Korea, Promotion


and Protection of Human Rights: Human Rights Situations and Reports of Special Rapporteurs and Representatives, U.N. GAOR, 63rd Sess., Agenda Item 64 (c), U.N. Doc.
A/C.3/63/L.26 (30Oct. 2008) [hereinafter Promotion and Protection] available at http://
daccess-dds-ny.un.org/doc/UNDOC/LTD/N08/579/63/PDF/N0857963.pdf?OpenElement.
Ninety-five countries voted in favor, while twenty-four voted against, with sixty-two abstaining. See Press Release, U.N.G.A. GA/SHC/3940, Third Committee Draft Resolutions
Address Human Rights Situations in Myanmar, Democratic People's Republic of Korea,
Iran (Nov. 21, 2008) (available at http://www.un.org/News/Press/docs/2008/gashc3940.
doc.htm).
See Amnesty Int'l, North Korea: Torture, Death Penalty and Abductions, Al Index
ASA 24/003/2009, Aug. 2009, available at http://www.amnesty.org/en/library/asset/
ASA24/003/2009/en/544fbfdc-94 1c-4bb4-89b8-92dd08c62d92/asa240032009en.pdf
Human Rights Watch [HRW], A Matter of Survival: The North Korean Government's
Control of Food and the Risk of Hunger, Vol. 18, No. 3 (C), May 2006.
See, e.g., Tom O'Neill, Escape from North Korea, NAT'L GEOGRAPHic, Feb. 2009, available
at http://ngm.nationalgeographic.com/2009/02/north-korea/onei Il-text.

HUMAN RIGHTS QUARTERLY

Vol. 32

relative successes for human rights advancement in other countries,' this


article asks to what extent human rights advocacy groups have been able to
leverage law to improve the human rights record of North Korea.
To understand the advances and limitations of transnational legal mobilization on human rights protection in North Korea, this article first reviews
the state of human rights in North Korea, and next identifies which actors
are involved in human rights mobilization. The article then analyzes the
legal mobilization process of human rights actors, the implementation of
specific international and domestic laws, and the broader issues that impede
legal remedy of human rights issues in North Korea. The article concludes
that transnational legal mobilization has had the most significant impact on
strengthening the international human rights community, but little effect in
changing the reality of human rights abuse within North Korea due to political impediments such as denuclearization priorities, ideological polarization
between human rights groups, and North Korea's own counter-discourse to
human rights.

II. STATE OF HUMAN RIGHTS IN NORTH KOREA


The state of human rights in North Korea appears dismal by most global accounts.6 In November 2008, the UN General Assembly passed a human rights
7
resolution against North Korea for rights abuses in various categories:
1) Torture, cruel, inhuman or degrading punishment, arbitrary detention, forced
labor, prison camps
2) Punishment of repatriated North Korean refugees and asylum-seekers
3) Restrictions on freedoms of thought, religion, expression, assembly and
association, equal access to information
4) Restrictions on travel
5) Violations of economic, social and cultural rights, resulting in malnutrition,
especially of highly vulnerable groups
6) Rights violations against women (e.g., trafficking and other gender-based
discrimination)

5.
6.

See

IN
MARGARET E. KECK & KATHRYN SIKKINK,ACTIVISTSBEYOND BORDERS:ADVOCACYNETWORKS
INTERNATIONAL
POLITICS(1998).
PAOLO CAMMAROTA ETAL., SKADDEN,ARPS, SLATE,MEAGHER& FLOM LLP & U.S. COMM. FOR HUMAN
FOR PROTECTING
HUMAN RIGHTS IN NORTH KOREA(2007)
RIGHTS IN NORTH KOREA, LEGALSTRATEGIES

7.

available at http://www.hrnk.org/legalStrategies-1 107.pdf.


Ihereinafter LEGALSTRATEGIES]
One NGO-commissioned report claims that North Korea "has engaged in the systematic,
flagrant abuse of nearly every human right recognized by international law." Id. at 5.
See Promotion and Protection, supra note 2 at 3.

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Legal Mobilization for Human Rights

7) Rights violations against the disabled


8) Violations of workers' rights
Other governmental and NGO reports echo this sentiment. Amnesty International's most recent report reiterates concerns regarding the lack of
freedom of expression, enforced disappearances, prison conditions and the
death penalty, and the plight of North Koreans who leave their country.' It
especially prioritizes the right to food and also criticizes the lack of access
by NGOs and the UN Special Rapporteur to assess human rights conditions for themselves in North Korea. 9 Reports by Human Rights Watch and
Freedom House are similar in their appraisals. 0 The US Department of State,
likewise, provides examples of rights violations in the areas listed in the
General Assembly's resolution above." These include references to public
executions for North Koreans who had been repatriated from China, torture
of individuals in labor camps and prisons, detention and arrest (or worse) of
those practicing the Christian faith underground, compulsory labor, media
and internet censorship, and abductions of Japanese, South Korean, and
other foreign citizens.2
One United States NGO, the Committee for Human Rights in North Korea
(HRNK), prefers to focus on what it views as the worst human rights offenses
3
in North Korea: famine and the existence of political prisoner camps. Just
as Amnesty International prioritizes the issue of hunger, so too does HRNK.
A report commissioned by the NGO argues that the existence of persistent
famine and the exodus of North Koreans are evidence of the North Korean
4
government's violation of its people's basic human rights.1 It claims that
systematic starvation and gulag prison camps represent the "government's
failure to protect its own citizens from crimes against humanity.""
8.
9.
10.

11.
12.
13.
14.

15.

Amnesty Int'l, Amnesty International Report 2009: North Korea (2009) [hereinafter
Amnesty 2009], available at http://thereport.amnesty.org/en/regions/asia-pacific/northkorea.
Id.
HRW, World Report 2009 at 280-85 (2009), available at http://www.hrw.org/worldreport-2009; Freedom House, Worst of the Worst: The World's Most Repressive Societies
(2009), available at http://www.freedomhouse.orguploads/WoW09/WOW%202009.
pdf.
See U.S. Dep't of State, 2008 Human Rights Report: Democratic People's Republic of
Korea, 25 Feb. 2009, available at http://www.state.gov/g/drl/rls/hrrpt/2008/eap/1 19043.
htm.
Id.
See Committee for Human Rights in North Korea [HRNKI, Founding Declaration, available at http://www.hrnk.org/declaration.htm.
HRNK & DLA PIPER,FAILURETO PROTECT:A CALL FORTHEUN SECURITYCOUNCIL TO ACr IN NORTH
KOREA(2006) [hereinafter FAILURETO PROTECT].
Id. at 83. For similar assessments by other scholars, see also STEPHANHAGGARD & MARCUS
NOLAND, FAMINEIN NORTH KOREA209

(2007); Grace M. Kang, A Case for the Prosecution of

Kim Jong I/ for Crimes Against Humanity, Genocide, and War Crimes, 38 COLUM. HUM.
RTS.L. REv. 51 (2006).

HUMAN RIGHTS QUARTERLY

Vol. 32

The issue of famine is salient because it compels North Koreans to leave


their country in search of an adequate standard of living, thus explaining
the continuous emigration of North Korean people. The general population's
difficulty in maintaining an adequate standard of living means that North
Korea violates several international human rights instruments, including the
Universal Declaration of Human Rights and the International Covenant on
Economic, Social, and Cultural Rights, to which it is a signatory.16 When
asked why she left, one North Korean who eventually resettled in Seoul,
explained, "It was either leave, or become a criminal to survive." 7 The
compulsion to leave North Korea may frequently result in other rights abuses
of North Koreans, including trafficking and forced repatriation. Meanwhile,
according to the NGO reports listed above, forced repatriation often leads
to imprisonment, torture, or execution in some cases. 8
The overall consensus seems clear on the existing chain of human
rights abuses in North Korea. However, objections exist. For one, the North
Korean government has rejected the UN General Assembly resolution.19 It
claims that it has a legal system in place for human rights protection and
has submitted periodic reports to the UN treaty committees explaining
its observance of international human rights treaties.2 0 Additionally, some
South Korean NGOs and North Korea observers note troubling dimensions
as to how North Korean human rights violations are characterized. One
NGO report questions the sources for many of the human rights reports
above, claiming that the same witnesses' testimonies are cross-referenced
repeatedly.2 A quick perusal of the major reports does show duplication
of the same information without adequate specificity in citations, if there
are citations at all. Recycling of testimonies highlights the most egregious
abuses in North Korea, but it does not help to quantify the abuses suffered
by the general North Korean population. This speaks to the other difficulty

16.

17.
18.
19.
20.
21.

Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (111),
U.N. GAOR, 3d Sess, art. 25(1), U.N. Doc. A/RES/3/21 7A (1948). See also International
Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res.
2200 (XXI), U.N. GAOR, 21st Sess., art. 11(1), U.N. Doc. A/6316 (1966), 993 U.N.T.S.
3 (entered into force 3 Jan. 1976).
Interview with a former North Korean refugee held in author's classroom in Seoul, South
Korea (15 Nov. 2008).
See Amnesty 2009, supra note 8.
See UN resolution on N. Korean Human Rights Stirs up Inter-Korean Relations, THE
HANKYOREH, 24 Nov. 2008, available at http://english.hani.co.kr/arti/english-edition/e_
northkorea/323601 .html.
See Core Document Forming Part of the Reports of States Parties: Democratic People's
Republic of Korea, at 7-9, U.N. Doc HRI/CORE/1/Add.108/Rev.1 (2002) [hereinafter
Core Document].
Catholic Human Rights Committee, Peace Network, and Sarangbang Group for Human Rights, The Statement of Peace and Human Rights NGOs' for United Nations
Universal Periodic Review of the Democratic People's Republic of Korea, at 5, 20 Apr.
2009 [hereinafter Statement of Peace] available at http://sarangbang.or.kr/bbs/download.
php?board=data&id=412&idx--2.

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Legal Mobilization for Human Rights

of confirming the extent of human rights abuse in North Korea.22 Conditions


are recognizably desperate enough for North Koreans to migrate (essentially
voting with their feet) as a socioeconomic statement on the state of living
in North Korea, yet it remains a challenge to verify the scope of abuse
nationwide. Another problematic factor is that North Koreans who resettle
in South Korea are motivated to tell their worst experiences to substantiate
their leaving North Korea. More progressive South Korean NGOs point out
that South Korea's own National Security Law would prevent any pro-North
Korean information from reaching the public, so the natural consequence
would be that the worst political and administrative aspects of the North
Korean government are publicized over more objective reports.23
Nonetheless, at least one organization has made efforts to overcome
these deficiencies by tabulating refugee testimonies as statistics. The Database
Center for North Korean Human Rights (NKDB) published a white paper in
2008, based on information collected from about 500 North Koreans during 2005 and 2006.24 It has nearly another 2000 individuals' information
to process from the years 2000-2007. Meanwhile, NKDB has categorized
2
3,000 incidents of abuse either experienced or directly observed. NKDB
admits many challenges and limitations in compiling its statistics, especially in finding corroboration of interviewees' testimonies, but it expects
increasing corroboration as additional testimonies are processed. 26 When
more of these types of reports surface or improve, a clearer, more critical
and objective picture of the situation of human rights in North Korea can
start to emerge.
While international human rights NGOs stand united on the fact that the
North Korean government perpetrates human rights violations, the approach
on how to handle this is scattered. As political scientist Katharine Moon
argues, the sheer scope of human rights abuses is so broad as to undermine
a focused and unified strategy on tackling the human rights issue in North
Korea. 27 Moon explains that "the very diversity of human rights actors, political

22.
23.
24.
25.

26.
27.

Katharine H.S. Moon, Beyond Demonization: A New Strategy for Human Rights in North
Korea, 107 CURRENTHISTORY 263, 264 (2008).
See Statement of Peace, supra note 21, at 5.
Database Center for North Korean Human Rights [NKDB], White Paper on North Korean
Human Rights Statistics 2007, 53 (North Korean Human Rights Archives, 2008), available
at http://nkdb.org/bbs/data/publication/white-paperl .pdf.
Id. at 57. Various forms of abuse (e.g., beatings, sexual assault, torture, death) are presented in the form of tables with little accompanying text. As presented, the information
is still difficult to contextualize. The 3,000 incidents involve about 2,900 individuals,
either as victims or perpetrators (mainly the former), with about 800 individuals directly
experiencing some form of abuse. 1,438 incidents of illegal detention or imprisonment
were reported. Id. at 57-60, 226.
Id. at 54-55.
See Moon, supra note 22, at 264.

HUMAN RIGHTS QUARTERLY

Vol. 32

agendas, and stakes makes for dissonant and incoherent public discourse." 28
A closer look at the different human rights actors, but also their attempts at
legal mobilization, tests whether this is an accurate assessment.
III. HUMAN RIGHTS ADVOCACY GROUPS AND THEIR
MOBILIZATION METHODS

Human rights advocacy groups targeting North Korea mobilize their respective campaigns in multiple ways, but a primary dynamic is their networking
with each other. This phenomenon is consistent with international human
rights activism generally. In their renowned study, political scientists Margaret Keck and Kathryn Sikkink find that the discourse and tactics afforded
by communicative channels among domestic and international NGOs,
intergovernmental organizations, private foundations, and parts of state
governmental bodies are what constitute advocacy networks and their ability
to mobilize rights campaigns on a more effective, global level. 29 Advocacy
groups communicate with each other, build global and moral legitimacy
for their rights objectives, and thereby exert more pressure on the government of a state to amend its offensive practices.3 0 Their study, among others, illustrates how advocacy networks have been effective in prioritizing
human rights in a number of countries, especially in Latin America during
the 1 970s and 1980s.11 Whether the same can be said of the transnational
human rights network on North Korea needs to be explored. This particular
network similarly consists of international and domestic NGOs based in the
United States and South Korea, UN agencies, and governmental bodies such
as congresses and commissions. In this section, we see what interconnected
role these human rights actors play and what types of mobilization tactics
32
they apply to promote human rights protection in North Korea.

A. US Movement

International NGOs such as Amnesty International and Human Rights Watch


have been active in raising awareness about the human rights situation in
28.
29.

Id. at 263.

30.
31.

Id.
Id. at 79-120. See also Yves Dezalay & Bryant Garth, Constructing Law Out of Power,
in CAUSE
LAWYERINC
AND THESTATE
IN A GLOBL ERA354 (Austin Sarat & Stuart Scheingold eds.
2001) [hereinafter Constructing Law].
Many nonprofit humanitarian organizations, including UN agencies, constitute another
sphere of actors that play a significant role in advancing human rights in North Korea,
in terms of food, agricultural and healthcare assistance, as opposed to calling explicitly
for broad human rights principles.

32.

See KECK & SIKKINK, supra note 5.

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Legal Mobilization for Human Rights

(and outside of) North Korea, especially through their media campaigns.
However, lesser-known NGOs, based in both the United States and South
Korea are more active than the larger international NGOs. In the United States,
the types of NGOs vary and include policy think-tanks, Korean-American
church groups, and refugee crisis organizations. This section focuses on two
US NGOs that have been among the most active in mobilizing a movement
toward human rights protection in North Korea: HRNK and the Defense
33
Forum Foundation.
Human rights and foreign policy specialists formed HRNK in 2001 to
research and raise awareness regarding human rights issues in North Korea,34
particularly regarding prison camps, famine, and North Korean refugees.
Consisting of bipartisan membership, HRNK has published several extensive reports on the state of human rights in North Korea, and its members
have worked closely with global human rights leaders such as Vaclav
Havel and Elie Wiesel to highlight these issues before the United Nations.
HRNK member David Hawk is also a former UN investigator and Amnesty
International activist who published the seminal report The Hidden Gulag:
Exposing North Korea's Prison Camps, which maps the prisons with satellite
images corresponding to the testimonies of former North Korean inmates
who eventually made their way to South Korea."
In a similar vein, the Defense Forum Foundation works to publicize
and educate US Congress about human rights issues worldwide, with one
of its particular focuses being North Korea. The Defense Forum also helped
to create the North Korea Freedom Coalition in 2003, an umbrella group
comprising 60 member organizations worldwide. Its membership illustrates
the vast array of human rights groups devoted to improving the rights situation of North Korean citizens. It includes religious groups (with many pastors as representative members), focus groups (e.g., women, refugee issues),
and organizations that operate as underground trains getting North Korean
refugees out of China. The Defense Forum and the North Korea Freedom
in the United
Coalition frequently work together to organize media events
36
States involving various NGOs and North Korean refugees.
One individual, Suzanne Scholte, has been particularly instrumental in
linking these groups and mobilizing efforts for human rights in North Korea.

33.
34.
35.
36.

Many American NGOs work toward human rights advancement in North Korea. Due to
their vast number, this article focuses on two representative examples without meaning
to discount the significance of many other important NGOs.
HRNK, About the Committee for Human Rights in North Korea, available at http://www.
hrnk.org/about.htm.
DAVID HAWK, THE HIDDEN GULAG: EXPOSINGNORTH KOREA'S PRISON CAMPS (2003).
Defense Forum Foundation [DFF], DFF Chairs North Korea freedom Week to Promote
Freedom and Human Rights for the North Korean People, available at http://www.
defenseforum.org/promotefreedom/articleol .html.

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Dr. Scholte has been president of the Defense Forum since 1989, is a vicechair and one of the founding board members of HRNK, and is also the
chair of the North Korea Freedom Coalition. Dr. Scholte was awarded the
2008 Seoul Peace Prize for her active leadership within these organizations,
such as inviting North Korean refugees on speaker circuits, promoting North
Korea Freedom Week, organizing congressional testimonies, and lobbying for
the US North Korean Human Rights Act.37 Meanwhile, her leadership across
NGOs gives her an important networking role, not just within the United
States between activists and congressional representatives, but also with
human rights activists and North Korean refugees in South Korea. Scholte's
own Christian background adds further appeal to both Korean-American and
South Korean church groups involved with North Korean refugee work.

B. South Korean Movement


While the US movement for human rights in North Korea demonstrates
bipartisan support, the same cannot be said of NGO activism in South
Korea. The North Korea Freedom Coalition claims to have ties to "all the
major NGOs in ...South Korea," 3 8 but this is misleading in that it conveys
a unified position of all major South Korean NGOs on the issue of human
rights in North Korea. In reality, South Korean NGOs are polarized on the
approach toward human rights improvement in North Korea, mainly along
ideological lines. Broadly, more conservative forces and Christian-based
churches dominate the discussion and activities regarding human rights
in North Korea, whereas more progressive NGOs have supported the engagement policies of the two past South Korean presidents (Kim Dae Jung
(1998-2003) and Roh Moo Hyun (2003-2008)) and prefer to prioritize
normalization of relations with North Korea with the view that bringing up
human rights earlier jeopardizes this relationship.
The reason for this divide in ideology and approach has a historical
rationale. Activists who rose up against the authoritarianism of South Korean
presidents Park Chung Hee and Chun Doo Hwan were concerned about
the human rights of South Korean citizens, whose rights were suppressed,
including workers and students painted as socialist, leftists, and pro-North
Korea. After the democratic transition in 1987, and the later presidencies of

37.
38.

Jung Sung-ki, US Human Rights Activist Wins Seoul Peace Prize, KoRE TIMES,3
Sept. 2008, available at http://www.koreatimes.co.kr/www/news/include/print.
asp?newsldx=3051 8.
North Korea Freedom Coalition [NKFC], NKFC and History, available at http://www.
nkfreedom.org/index.php?id=l 1.

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Legal Mobilization for Human Rights

Kim Dae Jung and Roh Moo Hyun, both of whom had been active against
the authoritarianism of the 1970s and 1980s, a certain standard baseline
of human rights observance seems to have been reached in South Korea,
including the establishment of the National Human Rights Commission
in 2001. However, the polarization between conservative and progressive
groups evidences a new phenomenon in South Korea. Conservative groups
criticize progressive NGOs for being silent about human rights abuses in the
North when they have traditionally been the vanguards of human rights in
South Korea, thus implying their adherence to socialist principles and their
ultimate support of the North Korean government. Meanwhile, progressive
NGOs criticize conservative groups for their historical ties to authoritarianism
their willingness to overlook human rights issues in South Korea, then and
now, and for using human rights as a means to the end goal of supporting
regime collapse in North Korea.
This political division explains why South Korean NGOs are varied in
their approach towards human rights advancement in North Korea. The most
organized and vocal NGOs, however, are those more aligned with the conservative political party. Probably the most representative of these NGOs is
the Citizens' Alliance for North Korean Human Rights (Citizens' Alliance).
Though Citizens' Alliance aims to be nonpartisan, it has many members of
South Korea's New Right Movement and often receives funding from the
conservative Chosun Ilbo news company. Citizens' Alliance hosts regular
domestic and international conferences to publicize rights issues and to give
voice to North Korean refugees. Citizens' Alliance also interacts often with
media organizations such as Free North Korea Radio, a broadcasting group
led by North Koreans who have resettled in South Korea, and Daily NK, an
online nonprofit news service, which work respectively to gets news into
North Korea and to the general public. Many other NGOs, including refugee crisis groups and churches, turn to grassroots activities, such as running
underground railroads in China and third countries for the safe passage of
North Korean refugees or helping North Koreans with resettlement in South
Korea. 39 Christian groups are especially motivated by the desire to rescue
North Koreans in a spiritual sense, converting them to the Christian faith
given the lack of religious freedom in North Korea.4"
On the other end of the political spectrum are progressive NGOs such
as Sarangbang Group for Human Rights and the Peace Network, which were
formed in the 1990s in response to correcting human rights abuses in South
Korea and promoting peaceful reunification, respectively. These two groups
have ardently criticized the dominant human rights movement in South

39.
40.

These include organizations such as Helping Hands, LINK, and Crossing Borders.
See information about Durihana, for example, in O'Neill Escape From North Korea,
supra note 4.

HUMAN RIGHTS QUARTERLY

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Korea. In response to the initial bill of the US North Korean Human Rights
Act of 2004, Sarangbang issued a statement on behalf of progressive civic
groups, claiming that the bill risked the peaceful normalization of relations
between the two Koreas, thereby obstructing, rather than promoting, the path
toward addressing humanitarian concerns in the North. 41 In this statement
and more recent ones by the Peace Network, the NGOs find it particularly
disturbing that the American National Endowment for Democracy (NED) is a
major source of funding for the major conservative NGOs working on human
rights in North Korea. 42 In the meantime, Sarangbang, the Peace Network,
and the Catholic Human Rights Committee have submitted a statement to
the United Nations for the 2009 Universal Periodic Review of the human
rights situation in North Korea. 43 The statement precedes its list of human
rights concerns with an appeal that the human rights situation in North
Korea be taken in the context of human rights on the Korean Peninsula as
a whole. It argues that human rights issues cannot be separated between
North and South Korea given ongoing ideological conflict,44 particularly in
South Korea where the National Security Law has historically been used to
suppress anti-government dissent in the name of quelling communist revolt.
A parallel claim is that statements provided by South Korean NGOs that are
critical of rights abuse in North Korea are subject to the National Security
more neutral or favorLaw, which privileges negative assessments whereas
45
able comments are restricted as a matter of law.
NGOs like Sarangbang are unappealing to the global human rights movement because they downplay the severity of human rights abuse in North
Korea, provide justifications for North Korea's humanitarian predicaments
(e.g., natural disasters, international sanctions), and prefer to deal with the
current North Korean government than to propel its demise, which would
cause even greater humanitarian catastrophes. 46 International human rights
activists are instead drawn to the existing, dominant network of conservative South Korean NGOs that are fixed on eliminating rights abuse in North
Korea. The ties between these NGOs and the United States are strong in this
regard. For example, the NED channels congressional money authorized by
the US North Korean Human Rights Act to several groups including, Citizens'

41.

42.
43.
44.
45.
46.

The Korean Civil Society Statement in Response to The May 4 2004 Report of the Committee on International Relations of the U.S. House of Representatives on H.R. 4011,
the North Korean Human Rights Act of 2004 (19 May 2004) [hereinafter Korean Civil
Society Statementl available at http://www.sarangbang.or.kr/eng/statement/20040606.
html.
Id. For a full list of NED grantees, see http://www.ned.org/where-we-work/asia/northkorea.
Statement of Peace, supra note 21, at 1.
Id. at 3.
Id. at 12.
Moon, supra note 22, at 264.

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Legal Mobilization for Human Rights

Alliance, Free North Korea Radio, and Daily NK. 47 This funding assists the
NGOs in their activities and institutional survival. The Citizens' Alliance and
Defense Forum are also partners. The two NGOs have hosted conferences
and coordinated awareness campaigns together. The most publicized and
controversial occasion was when their representatives, including Dr. Scholte
and North Korean refugees (e.g., Fighters for Free North Korea, Democracy
Network against NK Gulag), sailed into the West Sea to launch balloons
attached with leaflets about Kim Jong II and currency notes to send into
48
North Korea.

C. Mobilization Strategies
Campaign repertoires of NGOs consist of a range of tactics. This is no
exception for both South Korean and American NGOs. One important,
overarching dynamic of the human rights movements with respect to North
Korea, is the transnational alliance between groups in South Korea and the
United States. Alliances serve as a networking function, helping to open
channels of communication and to combine resources for higher impact
activities. For instance, groups like Citizens' Alliance gain financial support from NED, invite NED leaders and counterparts of the US Committee
for Human Rights in North Korea to speak at its international conferences,
partner with Defense Forum Foundation, and help shuttle refugees to the
United States for testimonials. In addition to conference work, dissemination of news is helped by media groups like Free North Korea Radio and
Daily NK. Mobilization tactics can also range from pursuing legal options
to extralegal activities. In terms of legal mobilization, the Defense Forum
Foundation was influential in lobbying for the passage of the US North
Korean Human Rights Act, while South Korean NGOs have campaigned to
pass a similar law in South Korea. 49 At the same time, some NGOs involved
themselves with work that verged on the extralegal, particularly with assisting North Korean refugees across borders of third countries without official
immigration papers. While international refugee law may be invoked in
these cases, these acts violate the immigration and border control laws of
the respective countries. Provocative protests such as the one involving the

47.
48.
49.

See National Endowment for Democracy Website, North Korea: Grant Listings from 2008
Annual Report, available at http://www.ned.org/where-we-work/asia/north-korea.
Suzanne Scholte, Why Balloon Launches to North Korea Must Continue, THE
CHOSUN ILBO, 2 Dec. 2008, available at http://news.chosun.com/site/data/htmldir/2008/12/02/2008120201594.html.
Defense Forum Foundation, Description of Suzanne Scholte's Efforts for the People of
North Koreas as President, Defense Forum Foundation and Chairman, North Korea
Freedom Coalition and Vice Chairman, Committee for Human Rights in North Korea,
available at http://www.defenseforum.org/latestnews/articlel 0.html.

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launching of balloons is a new manner of civil disobedience, continuing


despite warnings from the South Korean Ministry of Unification and Ministry
of National Defense. The NGOs' instrumentalist use of the law often calls
into question their actions, but the NGOs defend their behavior in view of
the more urgent goal of informing North Korean citizens about the repressive
actions of their government.5 0 The coordinated efforts of the NGO network
related to human rights in North Korea has gained momentum in the last five
years since many of these South Korean NGOs formed in the early 2000s
and grew with financial support from the NED.
D. National Human Rights Commission of the Republic of Korea

The National Human Rights Commission of South Korea (NHRCK) deserves


mention for its distinctive role in the human rights advocacy related to North
Korea. Established in 2001 under the Kim Dae Jung administration, the
NHRCK argues that its jurisdiction is limited to human rights petitions within
South Korea as designated under Articles 4 and 30 of the Human Rights
Commission Act."1 Nonetheless, the NHRCK provides a basic stance in its
recommendation that the South Korean government should: (1) cooperate
with the international community for humanitarian aid to North Korea; (2)
supply humanitarian aid without regard to political considerations; (3) help
to protect North Korean refugees' rights both diplomatically and institutionally; (4)work to resolve cases concerning separated families, abductees and
war prisoners; and (5) strive to collect and analyze factual and objective
information regarding the human rights situation in North Korea.52 In support
of these principles, the NHRCK has held fact-finding missions, organized
annual forums, and invited participants from all reaches of the human rights
activist community, including US and Korean NGOs, Amnesty International,
UN representatives (e.g., the UN Special Rapporteur on the human rights
situation in North Korea, the UN High Commissioner for Refugees), social
workers who work with refugees, foreign embassy representatives, and
scholars. Thus, the NHRCK facilitates further networking among the human
rights community, both domestic and international.
Despite these activities, the NHRCK has been in a delicate position.
The NHRCK was created as an independent commission to serve a check-

50.
51.
52.

See Scholte, supra note 48.


Press Release, National Human Rights Commission of Korea [NHRCKI, Position on North
Korean Human Rights (11 Dec. 2006), available at http://humanrights.go.kr/english/
north korea/introduction.jsp.
Id.

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Legal Mobilization for Human Rights

and-balance function vis-A-vis the government. A closer look at its leadership shows chairs and commissioners with a history of activism against
authoritarian administrations of years past, including lawyers who were
members of Minbyun (Lawyers for a Democratic Society) or affiliated with
progressive civic groups.53 While NHRCK's position on human rights in
North Korea was in quiet tandem with the past two administration's policy
of engagement toward North Korea, this is no longer the case. The current
Lee Myung Bak administration has challenged the overall independence of
the NHRCK. The Board of Audit and Inspection deemed it "bloated" and
mandated the downsizing of staff and payroll by twenty-one percent.5 4 The
NHRCK has petitioned the Constitutional Court with respect to this action
for undermining its independence, and for lack of transparency in the audit
reports without considering the increasing rise in processing human rights
petitions nationwide.5 After former chair Ahn Kyong-Whan resigned in
protest in July 2009, President Lee unilaterally appointed Hyun Byung-Chul,
a law professor with little experience in the field of human rights.5 6 This
evoked regional consternation. One result is that the Asian Human Rights
Commission requested the UN Office of the High Commissioner for Human
Rights to downgrade the NHRCK's status given President Lee's attempts to
57
bring the NHRCK under executive control.
In many ways, the NHRCK embodies the ideological struggle over how
to approach the human rights issue in both South Korea and North Korea.
Under its past leadership, the NHRCK struggled with the balancing act of
being attentive to human rights in North Korea without outright condemnation
of the North Korean government, whereas it had no such problem criticizing administrative acts that infringed upon the rights of South Koreans. Its
current leadership will temper the actions of the NHRCK, which is another
example of how the issue of human rights in both Koreas must be constantly
mediated in the South Korean political sphere.

53.

54.
55.
56.
57.

NHRCK, About the Commission: Chairperson(s) Biography, available at http:llhumanrights.


go.kr/english/about-nhrck/commissioners.jsp; Chairperson, http://humanrights.go.kr
english/about nhrck/presidentOl.jsp. (These include the Chair Byung-Chul Hyun, past
chairs Kyong-Whan Ahn, Young-Hwang Cho, Young-Do Choi, Chang-Guk Kim, KyungSuk Choi, Nam-Young Yoo, and Kyung Ran Moon.)
Park Si-soo, Human Rights Agency Will Take Forced Downsizing Plan to Court,
KOREA TIMES, 27 Mar. 2009, available at http://www.koreatimes.co.kr/www/news/nation/2009/06/113 42119.html.
Id.
Letter from the Asian Human Rights Commission to the International Coordinating
Committee of National Institutions for Human Rights (31 July 2009), available at http://
www.ahrchk.net/statements/mainfile.php/2009statements/2153/.
Id.

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E. United Nations
The United Nations also has an important function within the international
human rights community, having started its focus on human rights in the
late 1970s. s8 As a composite of different agencies, the United Nations works
through its various institutional channels to deal with human rights throughout
the world. In this regard, it has often worked closely with the global NGO
community to gain information on human rights violations and in the drafting
of treaties and declarations.5 9 This relationship with NGOs also holds true
on the issue of human rights in North Korea throughout the UN.
1. General Assembly
The UN General Assembly has been the most visibly vocal body of the
United Nations in issuing human rights resolutions and appointing a Special
Rapporteur on the situation of human rights in North Korea. The General
Assembly passed a human rights resolution on North Korea on 28 February
2008, with the participation of South Korea under the current administration
60
of President Lee Myung Bak.
In the resolution, the General Assembly first acknowledges that member states are obligated to protect human rights as set forth in international
instruments, and that North Korea is a member of four international agree61
ments and has cooperated with various UN agencies (e.g. UNICEF, WHO).
However, it then notes that North Korea has not allowed the Special Rapporteur to visit the country to investigate human rights issues, before listing
several pages of human rights concerns. 62 Additionally, the resolution calls
58.
59.

60.
61.
62.

See KECK& SIKKNK, supra note 5, at 96.


Id. This is consistent with the experience of UN agencies where they depend on NGOs
for information. One example is when Theo C. Van Boven became the director of the
UN Center for Human Rights in 1976. He was criticized for working too closely with
NGOs on human rights issues in Argentina, butVan Boven justified his position: "It was
thanks to them, in fact, that we could carry on our work, because I've always claimed
that 85 percent of our information came from NGOs. We did not have the resources
or staff to collect information ourselves, so we were dependent. They did a lot of work
which we should do at the UN." Id., citing Interview with Theo C. Van Boven, Maastricht,
the Netherlands (8 Nov. 1993).
Situation of Human Rights in the Democratic People's Republic of Korea, Resolution
Adopted by the General Assembly, U.N. GAOR 62d Sess., Agenda Item 70(c), U.N.
Doc. A/RES/62/167 (2008) [hereinafter Resolution Adopted by the General Assembly].
Id. 1
1-2.
Id. 1 (b)(i-viii) (These include: (i) torture, excessive punishment, arbitrary detention,
forced labor, prison camps; (ii) punishment of repatriated North Korean refugees and
asylum-seekers; (iii) restrictions on freedoms of thought, religion, expression, assembly
and association, access to information; (iv) restrictions on travel; (v) violations of economic, social and cultural rights, resulting in malnutrition, especially of highly vulnerable
groups; (vi) rights violations against women, such as trafficking and other gender-based
discrimination; (vii) rights violations against the disabled; and (viii) violation of workers'
rights.) Id.

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Legal Mobilization for Human Rights

upon the North Korean government to resolve issues related to the abduction of foreigners and the misallocation of humanitarian resources.63 It then
"[sItrongly urges" North Korea to "immediately put an end to the systematic, widespread and grave violations of human rights mentioned above" by
abiding by UN procedures and treaties, adding further that violators must
be "brought to justice," that repatriated individuals not be punished, and
to cooperate with UN bodies, such as the Special Rapporteur, UN High
Commissioner for Human Rights, the International Labour Organization,
and UN humanitarian agencies. 64 The resolution concludes by stating that
the General Assembly will continue to monitor the human rights situation
65
in North Korea.
The drafting of this resolution on human rights in the DPRK, along with
those on Myanmar and Iran, provoked heated debate within the Third Committee of the General Assembly. 66 France's delegate, who had introduced
the draft resolution, said it was "aimed at drawing the attention of the international community to worrying human rights situations, in an effort to
mobilize action on all sides," adding that "[t]he General Assembly should
not remain silent."67 Canada's delegate had drafted the resolution on Iran,
arguing that not to do so would "undermine the Committee's credibility and,
by extension, the credibility of the General Assembly at large." 68 Meanwhile,
the delegates of the subject countries all objected on grounds of countryselectivity, hypocrisy, and politicization. Other representatives, including
Cuba, Venezuela, and Singapore, pointed out that the new Universal Periodic Review process of the UN Human Rights Council, scheduled to begin
in 2009 and every four years thereafter, adequately served the purpose of
highlighting human rights concerns, and that singling out countries outside
the process was a political move benefiting the agenda of a few Member
States. 9 The North Korean delegate responded by pointing out the political
purposes and hypocrisy of the United States, Japan, and South Korea in supporting this resolution, adding that the DPRK was ready to participate in the
Universal Periodic Review.70 This view, shared by other country delegates,

63.
64.
65.
66.

Id. 2-3.
Id. 4-5.
Id. 5.
Third Committee Draft Resolutions Address Human Rights Situations in Myanmar,

Democratic People's Republic of Korea, Iran, U.N.G.A., Third Comm., 63d Sess., U.N.
Doc. GA/SHC/3940 at 1 (2008) [hereinafter Third Comm. Draft] available at http://www.
un.org/News/Press/docs/2008/gashc3940.doc. The Third Committee is also known as
the Social, Humanitarian and Cultural Committee. See U.N. General Assembly, Main
Committees, available at http://www.un.org/ga/maincommittees.shtml.

67.
68.
69.

Id.
Id. at 2.
Id. at 2, 7, 10.

70.

Id. at 10.

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helps to explain the twenty-four countries voting against the resolution, and
the sixty-two abstentions from the resolution.71
The country-specific resolution illustrates how the UN General Assembly
is moving outside its own processes to bear pressure on countries with grave
human rights violations. The statement by France's delegate also shows how
this resolution is intended to "mobilize" action by many parties.7 2 Close
inspection of the resolution shows that it is more or less a position paper
of the General Assembly, full of acknowledgements and entreaties to North
Korea. 3 However, the voice of the resolution has worldwide impact when
reported by the media, and is then taken up by actors who are interested in
resolving the human rights situation in North Korea, including NGOs.
2. Human Rights Council
The General Assembly also formed the Human Rights Council in 2006, a
body of forty-seven country representatives who investigate human rights
violations throughout the world. The Human Rights Council runs the Universal Periodic Review, which has been set up to assess the human rights
situation in all 192 member states. 4 The Universal Periodic Review began
in 2009. With assessments currently underway, including for North Korea,
it remains to be seen what the practical effects will be.
3. Special Rapporteur
In 2004, the Commission on Human Rights, of the Office of the High Commissioner for Human Rights, appointed a Special Rapporteur, Vitit Muntarbhorn,
a law professor at Chulalongkorn University in Bangkok, Thailand, to assess
7
the situation of human rights in North Koreas.
The Special Rapporteur has
submitted reports to both the UN General Assembly and the Human Rights
Council. 76The role of Special Rapporteur is challenging, namely because the
North Korean government opposed and rejected the mandate to establish
this position.7 7 North Korea has refused his repeated requests for access to
North Korea. 7 8 Consequently, the Special Rapporteur had to rely on outside

71.

Id.

72.

Id.at 1.

73.

Id.

74.

See U.N. Human Rights Council, The Human Rights Council, available at http://www2.

ohchr.org/english/bodies/hrcouncil/.
75.

Situation of Human Rights inthe Democratic People's Republic of Korea, Report of the
Special Rapporteur, Vitit
Muntarbhorn, U.N. GAOR, 63d Sess., Agenda Item 67(c), at

2, U.N. Doc. A/63/322 (2008) [hereinafter Situation of Human Rightsl.


76.

77.
78.

Situation of Human Rights in the Democratic People's Republic of Korea: Report of the
Secretary-General,U.N. GAOR, 63d Sess., Agenda Item 67(c), at 7, U.N. Doc. A/63/332,

(2008).
Id.at 7.
Id.at 6-7.

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Legal Mobilization for Human Rights

reports and visits to other countries, such as Japan, Mongolia, and South
Korea to research the North Korean human rights situation.7 9 He relied on
extensive interviews with various members of respective governments, civil
society, and UN organs to compose his reports.80
While the Special Rapporteur could not obtain direct evidence from the
source country, the reports are comprehensive in listing areas of concern.
For example, the August 2008 report covers five areas: human rights and
the development process, access to food and other necessities, rights and
freedoms, displacement and asylum, groups of special concern, and consequences of violence and violations. 81 The data found in the reports derive
from outside country sources with the exception of some direct empirical
evidence provided by FAO/WFP on food and health statistics. 8 2 This kind

of reliance presents both advantages and challenges. On the one hand, UN


bodies can gather more information from a variety of sources, triangulating
more consistent data. UN bodies and representatives network with other
entities that may be more in tune with what is happening. NGOs may
be in constant communication with human rights victims, have firsthand
knowledge of perpetrated abuses and their consequences, and possess better documentation of human rights violations. On the other hand, the risk
is that information derived from outside sources reflects the same biases,
supporting generalizations instead of hard statistics. The lack of direct evidence makes it difficult to gauge the frequency and severity of human rights
abuses. These deficiencies may be tempered by crosschecking and tallying
witness testimonies. However, the depth of empirical analysis suffers when
UN reports recycle what NGOs communicate.
In the end, the UN process legitimizes the concerns of human rights
activist groups and implicitly and explicitly calls for more mobilization by
other actors, in some cases legal mobilization. For example, in the 2008 report, Professor Muntabhorn states: "There may also be avenues for mobilizing
action for individual criminal responsibility, inspired by the presence of the
International Criminal Court, where the local system is unable or unwilling
to act to make individuals accountable for serious crimes."83
4. UN Humanitarian Agencies
UN humanitarian agencies, on the whole, have had more success in cooperation with North Korea. Five UN bodies actively provide assistance to protect

79.
80.
81.
82.
83.

Id. at 7.
Id.
Situation of Human Rights, supra note 75, at 3.
Id. at 7-9.
Id. at 16.

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human rights in North Korea: the Food and Agriculture Organization (FAO),
World Food Program (WFP), World Health Organization (WHO), United
Nations Children's Fund (UNICEF), and the United Nations Population Fund
(UNFPA). 84 The General Assembly and the Special Rapporteur make a point
of this constructive engagement early in their respective resolutions and reports. 8 North Korea has worked consistently with UN agencies to alleviate
its food and health crises. For example, the Food and Agricultural Organization and the World Food Program monitor food security needs. They have
reported increased cooperation from the North Korean government in terms
of increased access to outlying counties (reaching 6.5 million people) and
visa approval for staff.8 6 Meanwhile, the World Health Organization keeps
track of medical issues and healthcare provisions, focusing on areas such
as maternal and child healthcare, control of communicable diseases, and
overall improvement of the healthcare system. The North Korean government
has proactively immunized against malaria and tuberculosis, and continues
policy dialogue on how to improve medical training and provisions.,, UNICEF
responds to emergency cases of malnutrition, water sanitation, and education
for children, while UNFPA works on spreading awareness of family planning and HIV/AIDS prevention, and currently tracks the maternal mortality
rate in North Korea. 88 With both agencies, the government has cooperated
by providing access to homes and other survey needs. 89 Given the relative
success that humanitarian agencies have had in terms of access and cooperation with North Korean authorities, these relationships can ideally serve
as a benchmark for more cooperative and constructive projects to improve
the human rights situation in North Korea.
5. Office of the High Commissioner for Human Rights
The High Commissioner for Human Rights (OHCHR) has had less success
in engaging North Korea. The High Commissioner for Human Rights has
offered technical assistance to improve human rights observance in preparation for the 2009 Universal Periodic Review of the Human Rights Council.90

84.

85.
86.
87.
88.
89.
90.

Situation of Human Rights in the Democratic People's Republic of Korea: Report of the
Secretary-General, U.N. GAOR, 63d Session, Agenda Item 67 (c) of the provisional
agenda, U.N. Doc. A/63/332 (26 Aug. 2008) at 10-15 [hereinafter Report of the SecretaryGeneral] available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/NO8/490/92/PDF/
N0849092.pdf?OpenElement.
See Promotion and Protection, supra note 2; Situation of Human Rights, supra note 75,
at 4.
Situation of Human Rights, supra note 75, at 8.
Report of the Secretary-General, supra note 84, at 13.
Id. at 14-15.
Id.
Id. at 8.

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Legal Mobilization for Human Rights

While the DPRK noted the offer, it has otherwise refused its assistance and
not yet resumed communication with OHCHR based upon its objections
to the UN resolutions. 1
6. UN High Commissioner for Refugees
The UN High Commissioner for Refugees (UNHCR) works perhaps the most
quietly on the issue of human rights by supporting the movement of North
Korean refugees to safe haven countries.2 The UNHCR does not have a
presence in North Korea. It has a more surreptitious role monitoring the
flow and status of North Korean citizens across borders, and supporting the
safe transit of displaced North Koreans to destination countries, but there
has been no cooperation with the DPRK in this regard. 3
The role of the UN is multidimensional but instrumental in the way its
institutions are both aided by and further mobilize the advocacy network
of human rights NGOs. For example, this is evident in how the General
Assembly relies on NGO reports, but also explicitly uses the term "mobilize" to seek further action within the global NGO community. The Special
Rapporteur relies heavily on NGO sources, but also seeks ways to mobilize
international law for the same end goals that human rights NGOs have. The
Universal Periodic Review process also depends on reports submitted by
NGOs, with eventual published results having the effect of further bolstering NGO claims. Meanwhile, South Korean and American NGOs support
each other in funding, exchange of information, access to refugees, hosting
of conferences, media events, and protests, in order to add weight to their
overlapping cause. The National Human Rights Commission of South Korea, on the other hand, took a more cautious stance until recently, not only
reflecting the ideological divide between conservative and progressive human rights organizations, but also trying to maintain itself as a more neutral
forum to engage the international human rights advocacy network regarding
North Korea. While the mobilization efforts of this community are apparent
in the manners discussed above, this article next asks how the human rights
advocacy network has mobilized both international and domestic laws to
improve the human rights situation in North Korea.

IV. MOBILIZATION OF INTERNATIONAL AND DOMESTIC LAWS


The concept of legal mobilization, in simple terms, is when citizens harness the law, usually in cooperation with lawyers or the legal profession,
91.
92.
93.

Id. at 8-9.
Janice Lyn Marshall, International Attitudes in Acknowledging North Korean Defectors'
Refugee Status, International Symposium on North Korean Human Rights, National
Human Rights Commission of Korea, Seoul, Korea, 7 Nov. 2007, at 245-46.
Report of the Secretary-General, supra note 84, at 16.

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for a specific movement or cause.14 This has traditionally been understood


in terms of impact litigation.9" Legal mobilization can be more than taking
cases to court, however. Just as legal mobilization may be a tactic within
the campaign repertoire of a movement, so too does the range of legal
mobilization itself vary. This can include legal discourse, coalition building
among legal actors and activists, and a variety of legal methods beyond litigation, such as consulting, drafting laws, lobbying or petitioning legislators,
alternative dispute resolution, and educating about the law. Political scientist
Michael McCann finds that legal mobilization can be a very powerful tool
in movement building. 96 In his study on the pay equity reform movement in
the United States, McCann finds that in addition to litigation, "legal rights
discourse has provided reform activists a compelling normative language for
identifying, interpreting, and challenging the unjust logic of wage.""
The framework of legal mobilization can also be applied on an international level to human rights advocacy work.99 In dealing with the protection
of rights, human rights groups often mobilize the law both internationally
and domestically, by invoking the language of "human rights" as codified
in treaties or constructed as international customary norms, by taking cases
to international tribunals or domestic courts, and by their multilateral networking and communicating about human rights cases via legal procedures.
Scholars present accounts of relatively effective legal mobilization by NGCOs
and intergovernmental organizations influencing government practice, but
also discuss the reasons for limitations, such as resistance or blockage from
the target country.99 What is troubling is when transnational legal mobilization has little impact upon a government, as seen with the violent government practices in North Korea or when China repatriates North Koreans
back to their home country. In this case, human rights activism has yet to
correct the continuing human rights violations of North Korean citizens.
Though at least one account asserts that international pressure helped to
close and reorganize some prisons in North Korea in the 1990s, this does
not negate the continued existence of prison camps nor continuing human
rights violations. 100 To test whether transnational legal mobilization has been

MICHAEL W. MCCANN, RIGHTS AT WORK (1994); CAUSE LAWYERINGAND THE


STATEIN A GLOBAL ERA (Austin Sarat & Stuart A. Scheingold eds., 2001).
See Donald J. Black, The Mobilization of Law, 2 J.LEGALSTUD. 125 (1973).

94.

See, for example,

95.
96.
97.
98.

See MCCANN, supra note 94, at 87.


Id. at 48.
See Cecilia MacDowell Santos, Transnational Legal Activism and the State: Reflections
on Cases against Brazil in the Inter-American Commission on Human Rights, 7 SUR

J. HUM. RTs. 29 (2007). For more examples of transnational legal mobilization, see
also Constructing Law, supra note 31 and Scott Cummings & Louise Trubek, Globalizing
Public Interest Law, 13 UCLA J.INT'L L. & FOREIGNAFF. 1 (2009).
See KECK & SIKKINK, supra note 5, at 79-120.
Larry Diamond, Korea: Inside the Gulag, Hoover Digest No. 4 (1998), available at http://
www.hoover.org/publications/digest/3533466.html.
INT'L

99.
100.

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Legal Mobilization for Human Rights

effective with respect to North Korea, this section probes the international
and domestic laws applicable to human rights in North Korea, how human
rights activist groups have mobilized them, and whether and to what extent
these laws and legal procedures have yielded results for the human rights
community and especially the North Koreans who have suffered at the hands
of their government.

A. International Law
The United Nations and NGOs have resorted to international law in their
efforts to mobilize the law on human rights in North Korea. These include
UN treaty procedures, making a case for UN Security Council referral to
the International Criminal Court, and appeals to international refugee law.
Closer analysis of these laws and procedures evidence their soft law nature,
and thus the difficulty in implementing them for full effect. Nonetheless,
the international legal framework sets an explicit standard for human rights
protection and consequently helps to identify how human rights are violated
in North Korea.
1. International Human Rights Treaties
The United Nations has resorted to several actions to either monitor or censure North Korea for human rights violations: UNGA resolutions, appointment of a Special Rapporteur, initiation of the Universal Periodic Review
for human rights assessments of each UN member, and field involvement
of UN humanitarian agencies. Treaty bodies constitute another institutional
mechanism to hold North Korea accountable to international human rights
treaties to which they have signed.
North Korea is a signatory to four human rights treaties: International
Covenant on Civil and Political Rights (ICCPR), International Covenant on
Economic, Social and Cultural Rights (ICESCR), Convention on the Elimination
of Discrimination Against Women (CEDAW), and Convention on the Rights
of the Child (CRC). m1 Under these treaty obligations, the North Korean government must submit a periodic report on the implementation of the signed
treaties within a year of its implementation and on average every four years

101.

See United Nations Treaty Collection, Status of Treaties, available at http://treaties.


un.org/ages/Treaties.aspx?id=4&subid=A&lang=en. The ICCPR and ICESCR were ratified 14 Sept. 1981; CRC on 21 Sept. 1990; and CEDAW on 27 Feb. 2001. Id. See also
Democratic People's Republic of Korea-Ratifications, available at http://www.bayefsky.
com/html/dprkorea-tl ratifications.php.

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at the request of each treaty's reviewing committee. 0 2 Overall, North Korea's


record in submitting periodic reports has been sporadic and tardy. 103
More important than timing, however, are the contents of the periodic
reports. The North Korean government claims to abide by the four treaties
and sets forth laws, policies, data, and examples as justification. Several
themes consistent among the reports deserve mention for their significance.
One is that there are many references to the domestic legal infrastructure
in place to protect human rights, with frequent mention to specific laws
enacted or amended. For example, North Korea adopted or amended a
number of laws to be consistent with the ICCPR, which can be categorized
into the areas of criminal law and criminal procedure, gender equality, and
the civil law, with corresponding constitutional provisions.104 While many
laws have indeed been newly enacted or revised, their implementation is
open to question and not corroborated by data from former North Korean
citizens. Nonetheless, the dominance of legal discussion in the reports illustrate that North Korean officials understand that a legal framework is
necessary to preserve human rights, at least in theory. Furthermore, the
enactment or revision of laws demonstrates that North Korea has in fact
changed its laws to comply with the treaties, though it would appear to be
more so on paper than in reality.
Also consistent in the reports are admissions of dire economic conditions in the country, including agricultural decline, malnutrition of children
and vulnerable populations, and deficiencies in healthcare and education
for rural areas, which are attributed to flood disasters, external sanctions,
and market collapse.1 0 5 These admissions challenge the stereotype of the

102.
103.

104.

105.

International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res.
2200 (XXI), U.N. GAOR, 21st Sess., art. 40, U.N. Doc. A/6316 (1966), 999 U.N.T.S.
171 (entered into force 23 Mar. 1976).
Reporting History-Democratic People's Republic of Korea, available at http://www.
bayefsky.com/docs.php/area/rephistory/state/47. For example, it signed the ICCPR in 1981,
submitted its initial report in 1984 and its second report in 2000, despite attempting
to withdraw from the ICCPR in 1997. The third periodic report was due in 2004, but
has yet to be submitted. Similarly, North Korea has only submitted two periodic reports
under the ICESCR, in 1987 and 2002. It has though submitted more recent reports for
CEDAW (2002) and CRC (2008). Id.
Second Periodic Report of the Democratic People's Republic of Korea on its Implementation of the International Covenant on Civil and Political Rights, U.N. GAOR, Hum.
Rts. Comm., 5-6, U.N. Doc. CCPR/C/PRK/2000/2 (2000) [hereinafter Second Periodic
Report].
See generally Consideration of Reports Submitted by States Parties Under Article 18 of
the Convention on the Elimination ofAll Forms of Discrimination Against Women, Initial
Report of States Parties: Democratic People's Republic of Korea, U.N. GAOR, Comm.
on Elim. Of Discrim. Against Women, U.N. Doc. CEDAW/C/PRK/1 (2002) [hereinafter
Under Article 181; Consideration of Reports Submitted by States Parties Under Article
44 of the Convention, The Combined Third and Fourth Periodic Reports of States Parties
Due in 2007: Democratic People's Republic of Korea, U.N. GAOR, Comm. on Rts. of
the Child, U.N. Doc. CRC/C/PRK/4 (2008) [hereinafter Under Article 441; Implementation of the International Covenant on Economic, Social and Cultural Rights, Second

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Legal Mobilization for Human Rights

North Korean government as being ignorant, uncaring, or in denial about


the welfare of its general population. Yet the reports do not address how
these conditions more negatively impact those citizens at the lowest rungs
of North Korea's social and political hierarchy, including those in labor
camps and prisons. This brings us to another recurrent theme, which is
that the reports credit and express gratitude for international humanitarian
assistance from UN agencies, international NGOs, and other states. 10 6 This
signifies that the North Korean government recognizes and appreciates the
goodwill of other organizations and states in alleviating hunger and sickness,
though this too does not address whether the most vulnerable populations
actually receive this aid.
While the treaty process forces the North Korean government to justify its
protection of rights, it is difficult to accept the reports at face value. On the
one hand, the reports demonstrate legal changes, acknowledgments of areas
needing improvement (e.g., length of detention), growing policy coordination
10 7
(e.g., establishment of a national committee on implementing CEDAW),
0
8
and also a developing sophistication in the writing of its reports.
On the
other hand, the reports are rarely self-critical, lack empirical data, and, most
tellingly, do not admit to a single instance of human rights violation in the
country. According to its periodic reports, North Korea fully abides by the
treaties. Based on refugee testimonies, the UN and NGOs do not entirely
agree with North Korea's periodic reports. Instead, NGOs partake in the
treaty reviewing process to challenge North Korea's rendition, by submitting counter-reports, or shadow reports, to provide different accounts. 09
Ultimately, the treaties are difficult to enforce by the review process alone.
Therefore, the UN relies on other mechanisms to force North Korea to address its human rights situation more seriously, including the UNGA resolution, appointment of a special rapporteur, and now the newly implemented
Universal Periodic Review process. One other avenue for UN action to push

106.
107.

108.

109.

Periodic Reports Submitted by States Parties Under Articles 16 and 17 of the Covenant,
Addendum: Democratic People's Republic of Korea, ESCOR, U.N. Doc. E/1 990/6/Add.35
(2002); Second Periodic Report, supra note 103.
Id.
See Under Article 18, supra note 104, at 12. It formed the National Coordination Committee for the Implementation of CEDAW in September 2001, comprised of members of
the Presidium of the Supreme People's Assembly, the Cabinet, as well as the Ministries
of Labor, Education, Public Health, Foreign Affairs, and the Central Court and Central
Public Prosecutor's Office. Id.
See Under Article 44, supra note 104. Among all of the periodic reports, this most recent
one is perhaps the most sophisticated in terms of organization and style. It first explains
the general measures of implementation: harmonization of laws, comprehensive strategy
for implementation, coordinating mechanism for implementation, resource mobilization, international cooperation, dissemination of the Convention, and availability of the
report. Id.
See LEGAL
STRATEGIES,
supra note 6.

HUMAN RIGHTS QUARTERLY

Vol. 32

for human rights action is a UN Security Council resolution, the feasibility

of which is discussed below.


2. Rome Statute of the International Criminal Court
Scholars and lawyers have proposed that Kim Jong II and state officials may
be held criminally liable under the Rome Statute of the International Criminal Court (ICC) for crimes against humanity, war crimes, and genocide.110
This legal resolution is not as simple as it appears, as it involves questions
of ICC jurisdiction and practical implementation.
On the basis of legal analysis alone, reported rights violations in North
Korea fall within the scope of crimes listed in the Rome Statute. For example,
the Rome Statute stipulates that a "crime against humanity" includes any of
the following if it is a widespread or systematic attack against any civilian
population, with knowledge of the attack: (a) murder, (b) extermination, (c)
enslavement, (d) deportation or forcible transfer of population, (e) imprisonment, (f) torture, (g) rape and other forms of sexual violence, (h) persecution
against any identifiable group on political, racial, national, ethnic, cultural,
religious or gender grounds, (i) enforced disappearance of persons, (j) apartheid, (k) other inhumane acts causing great suffering mentally or physically."'
With the exception of apartheid, all of the acts listed in Article 7 have been
reported as common incidents of violence committed by the state apparatus.
Kim Jong II and higher officials may also be found guilty of war crimes and
genocide under the Rome Statute. The taking and continuous detention of
prisoners of war from the Korean War (1950-1953), estimated to be about
500 personnel, constitute a breach of the Geneva Convention on the treatment of prisoners of war, and consequently a breach of Article 8 of the Rome
Statute, which embodies the Geneva Convention principles. 2 Charges of
genocide may also be brought under Article 6 of the Rome Statute. Genocide
is defined under the statute as "acts committed with intent to destroy, in
whole or in part, a national ethnical racial or religious group." According
to North Korean refugees and NGOs, the North Korean security apparatus
has targeted two groups for extermination: Korean-Chinese infants and
Christians.' 13 While empirical data is missing, North Korean women refugees
have reported that North Korean security guards have prevented births by

110.
111.

See Kang, supra note 15, at 51; See Legal Strategies, supra note 6, at 25-37.
Rome Statute of the International Criminal Court, adopted 17 July 1998, art. 7, U.N. Doc.
A/CONF.183/9 (1998), 2187 U.N.T.S. 90 (entered into force 1 July 2002) thereinafter

Rome Statute].
112.
113.

Id. art. 8; See Kang, supra note 15, at 106-07.


See LEGALSTRATEGIES,
supra note 6, at 27-28; See Kang, supra note 15, at 98-106.

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Legal Mobilization for Human Rights

detainees, especially if the infant might be biracial (Korean-Chinese), forcing


miscarriages, abortion, or other forms of infanticide." 4
The case can be made that Kim Jong II and his state officials violate the
Rome Statute, but bringing them before the International Criminal Court is
another matter. The ICC may exercise jurisdiction over a state party if crimes
have been committed within the state party's territory or by its citizenry, or if
15
a non-ratifying state has lodged a declaration accepting ICC jurisdiction.'
The ICC may begin investigation of such crimes if: (1) a state party refers the
crimes to the ICC Prosecutor; (2) the UN Security Council refers the crimes
to the ICC Prosecutor; or (3) the ICC Prosecutor directly initiates investigation.1 6 North Korea is not a state party to the Rome Statute, and thus has not
accepted the jurisdiction of the ICC. In this case, the UN Security Council
would have to refer the crimes under the UN Charter (Chapter VII) to the
ICC for the latter to investigate violations under the Rome Statute by North
Korean leaders. Other requirements are that the crimes under investigation
were committed after 1 July 2002, when the Rome Statute was enacted, and
that the domestic courts cannot adequately remedy the crimes. 17 It may
be accepted prima facie that domestic courts do not have the independent
authority to try crimes of the executive leadership, but documentation will
nonetheless be required to identify specific crimes committed after July
2002, as well as to prove the requisite intent of the leadership in committing these crimes.
The UN Charter permits the UN to take action to maintain international
peace and security. For referral to the ICC, the UN Security Council would
need to issue a resolution, which may be achieved by vote as long as none
of the five Permanent Members veto the resolution.'
Despite calls for a
UN Security Council resolution on human rights in North Korea, this path
has yet to be taken. 9 While the Security Council has issued five resolutions with respect to nuclear and arms proliferation by North Korea, most
recently Resolutions 1718 (2006) and 1874 (2009) to sanction nuclear testing
by North Korea, it appears that the Security Council is not willing to vote
120
upon a resolution to address the human rights situation in North Korea.

114.
115.
116.
117.
118.
119.
120.

See Kang, supra note 15, at 98-99.


See Rome Statute, supra note 110, art. 12; See LEGALSTRATEGIES,
supra note 6, at 25.
See Rome Statute, supra note 110, art. 13.
Id. arts. 1, 11, 17.
See U.N. Security Council, Membership in 2010, available at http://www.un.org/sc/
members.asp. The five Permanent Members are the United States, United Kingdom,
China, Russia, and France. Id.
Vaclav Havel, Kjell Magne Bondevick, Elie Wiesel, Turn North Korea into a Human
Rights Issue, N.Y.TIMES,30 Oct. 2006, available at http://www.nytimes.com/2006/10/30/
opinion/30havel.html?_r=.
U.N.S.C., Res. 1874, U.N. Doc. S/RES/1 874 (12 June 2009); U.N.S.C. Res. 1718, U.N.
Doc. S/RES/1 718 (14 Oct. 2006).

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Vol. 32

The initiative is not likely to come from either the United States or Chinese
governments. The US government has not accepted the jurisdiction of the
ICC itself. The US State Department under both administrations of Bush,
and now Obama, prioritizes nuclear nonproliferation, not wanting to link
human rights as it might complicate negotiations. China, too, is unlikely to
upset its neighbor in light of trying to maintain refugee outflows. Assuming
even that the Security Council succeeds in passing a resolution on human
rights in North Korea, ICC procedures depend on summoning the accused
and having the accused present before the court for charges to be brought.121
North Korean leaders are highly unlikely to submit themselves voluntarily
122
before the court.
What practical effect, then, does the Rome Statute have over crimes
perpetrated in North Korea under the leadership of Kim Jong I1?
As of yet,
this is unclear. In 2009, South Korean NGOs formed the Crimes Against
Humanity Investigations Committee that campaigned the ICC to prosecute
Kim Jong II for crimes against humanity. 23 Though NGOs would like to
invoke this international legal remedy, the likelihood of charging Kim Jong
II and other individual officials would be low for the reasons stated above.
Nonetheless, an important step has occurred, which is labeling the crimes
of the state as violations of the Rome Statute (thus crimes against humanity,
war crimes and genocide). Stating that North Korean leaders have violated
jus cogens principles embodied in the Rome Statute and that they are potentially subject to the ICC sends a powerful message. The Committe for
Human Rights in North Korea has worked with notable human rights and
peace activists to elevate the scale of abuses committed by the North Korean government.1 24 While its practical implementation may be difficult, the
significance lies in the naming of North Korea's violation of international
human rights standards and the theoretical potential of Kim Jong II being
held personally and criminally liable.
Besides the crimes enunciated in the Rome Statute, another emerging
human rights doctrine is a state's "responsibility to protect" its own citizens
from crimes against humanity, war crimes, and genocide.2 sAfter arguing that
North Korea's food policy and resulting famine, as well as the existence and
operation of its political prison system, amount to crimes against humanity
and North Korea's failure to protect its citizens from such crimes, the report
commissioned by the Committee for Human Rights in North Korea states:
121.
122.
123.
124.
125.

See Rome Statute, supra note 110, art. 58; See LEGALSTRATEGIES,
supra note 6, at 33.
See LEGALSTRATEGIES,
supra note 6, at 35.
See, for example, Letter to the ICC Prosecutor Re: Request for Investigating 245 Persons
in the Yodok Political Prisoner Camp in North Korea (23 Feb. 2010) (on file with author),
available at http://iccnk.kr/xedata/1 294.
See FAILURETO PROFECT,supra note 14.
Id.at 111-18.

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Legal Mobilization for Human Rights


This report implores the United Nations, through the Security Council, to invoke the responsibility to protect doctrine because all other efforts to engage
with North Korea through the UN system to address the sets of activities which
gulag
comprise crimes against humanity (i.e., food policy and famine, and 12 the
6
system) have failed to protect the civilian population of the country.

On one level, the turn to this new doctrine signifies frustration with NGOs
that see little results via normal institutional channels of the UN. While
NGOs may submit reports to UN bodies, whether as part of the treaty review
process, the UPR, or in calling for higher impact actions from the Security
Council, the resort to these processes have so far yielded little in the way
of human rights advancement in North Korea.
3. International Refugee Law
International refugee law also matters with respect to human rights protection
in North Korea given the steady flow of North Koreans crossing the border
illegally into China, often only to face trafficking, slavery, or repatriation back
to North Korea (thus likely to be subjected to further rights violations such
as torture, imprisonment, or execution). The two main conventions are the
1951 Convention Relating to the Status of Refugees and the 1967 Protocol,
the latter of which expanded the scope of the 1951 Convention to apply to
refugees beyond the context of World War 11.127
Although China acceded to the 1951 Convention in 1982, the government signed a bilateral agreement with North Korea in 1986 to repatriate
North Koreans who enter the country illegally.128 The Chinese government
does not consider North Koreans residing illegally in their territory as falling
under the strict definition of refugee under the 1951 Convention. Under the
Convention, a refugee is defined as:
[A]ny person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his [or her] nationality and is unable
or, owing to such fear, is unwilling to avail himself [or herself] of the protection
of that country.129

126. Id. at 118.


127. Convention Relating to the Status of Refugees, adopted 28 July 1951, U.N. Doc. A/
CONF.2/108 (1951), 189 U.N.T.S. 150 (entered into force 22 April 1954) [hereinafter
Status of Refugees]; Protocol Relating to the Status of Refugees, adopted 31 Jan. 1967,
G.A. Res. 2198 (XXI), U.N. GAOR, 21 st Sess., 19 U.S.T. 6223, 606 U.N.T.S. 267 (entered
into force 4 Oct. 1967) (entered into force for U.S. 1 Nov. 1968).
128. Rhoda Margesson et al, North Korean Refugees in China and Human Rights Issues:
International Response and U.S. Policy Options, CRS Report for Congress (26 Sept.
2007).
129. See Status of Refugees, supra note 126, art. 1A(2).

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Vol. 32

Instead, the Chinese government prefers to classify North Koreans in their


territory as "economic migrants," or those who have migrated to China in
search of food and better living standards (rather than leaving for reasons
of personal political persecution). 130 The Chinese government has instead
cracked down harder on North Koreans within its territory and NGO networks helping them, mainly due to negative global publicity (a familiar image being the dramatic runs on foreign embassies and consulates by North
Koreans in the early 2000s).
Human rights activists have argued for a different interpretation of
the Convention. For instance, the Special Rapporteur for human rights in
North Korea has stated that North Koreans in China qualify as refugees sur
place because they face the threat of persecution upon returning to North
Korea.131 If the mere act of leaving North Korea would subject them to serious harm amounting to persecution, this could be construed as "imputed
political opinion."' 3 2 Furthermore, the Convention provides for the principle
of non-refoulement "No Contracting State shall expel or return ["refouler"]
a refugee in any manner whatsoever to ...territories where his [or her]
life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."' 33
Accordingly, under this principle, North Koreans should not be repatriated
to North Korea.
Complicating the labeling of North Koreans as refugees is that the
South Korean Constitution confers South Korean citizenship on all North
Koreans. 13 4 The Convention provides that those with more than one nationality "shall not be deemed to be lacking the protection of the country of
his [or her] nationality if, without any valid reason based on well-founded
fear, he [or she] has not availed himself [or herself ]of the protection of
one of the countries of which he [or she] is a national." 35 Because North
Koreans can avail themselves of South Korean citizenship, some states do
13 6
not recognize them as refugees, for example Germany and Australia.
Meanwhile, countries like Thailand and Mongolia, which are part of the
underground corridors for North Koreans seeking their way out of China,

130.

131.
132.
133.
134.
135.
136.

Janice Lyn Marshall, UNHCR Seoul Representative, International Attitudes toward the
Vulnerability and Need for Protection of North Koreans Outside the DPRK, Paper presented at 2008 North Korean Human Rights Campaign: Compassion for North Korean
Orphans, at 149, Seoul, Korea, 26 Sept. 2008 (on file with author).
Situation of Human Rights, supra note 75, at 12.
Marshall, supra note 129, at 243.
See Status of Refugees, supra note 126, art. 33.
HEONBEOP [Constitution) arts. 2, 3. (Republic of Korea).
See Status of Refugees, supra note 126, art. 1 A(2).
Marshall, supra note 129, at 4.

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Legal Mobilization for Human Rights

have not recognized North Koreans as refugees either. Neither country is a


member of the Convention, but they do not repatriate North Koreans and
have been able to provide safe facilities for their transit to South Korea or
another country of destination.
At issue is whether the process of refugee identification is a workable
concept for both the North Korean population in China, who fall between
the cracks of the 1951 Convention, and the countries faced with the continuing influx of North Koreans. North Koreans remain at risk of repatriation so
long as they remain in China, whereas countries like China, Mongolia, and
those in Southeast Asia are adverse to accepting North Koreans formally as
refugees for risk of attracting even more North Koreans, thus amplifying existing problems such as border transgressions, trafficking networks, crowded
detention facilities, unwanted international scrutiny, and worsening relations
with North Korea.
Additional arguments have been made to support the principle of nonrefoulement under the 1984 Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, to which China is also a
party.13 7 This stipulates that member states shall not repatriate "a person to a
State where there are substantial grounds for believing that he [or she] would
be in danger of being subjected to torture."' 38 Because China is a signatory
to the 1984 Convention, the argument is that China should also abide by
39
the Torture Convention in addition to the Refugee Convention.1
Despite repatriation, many are willing to leave North Korea again for
reasons of survival, and so the cycle of victimization and human rights
violations begins all over again. So far, the international refugee laws have
been of little assistance in convincing the Chinese government to reverse
their policy on repatriation. Practical considerations faced by the transit
countries in Asia allow for various interpretations and application of the
1951 Convention. While international customary law standards may exist
for reference and censure, these have minimal impact on the actions of
China, not to mention North Korea. Relying on international law alone has
not aided the plight of North Koreans in China and other third countries
risking repatriation, thus NGOs have also turned to domestic legislation as
another avenue for legal mobilization.

137.
138.
139.

Elim Chan and Andreas Schloenhardt, North Korean Refugees and International Refugee
Law, 19 Int'l J. Refugee L. 215, 235 (2007).
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., art. 3, U.N.
Doc. A/39/51 (1985), 1465 U.N.T.S. 85 (entered into force 26 June 1987).
Chan and Schloenhardt, supra note 136, at 235.

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B. Domestic Laws
Apart from the application of international laws, some states have
enacted, or are attempting to enact, domestic legislation on the issue of
human rights in North Korea. These include the United States and Japan,
which have already passed laws on human rights in North Korea, and South
Korea, which has a bill pending for passage. While human rights NGOs have
had little success with applying international law to North Korea, they have
been able to mobilize in lobbying for legislators' attention on human rights
in North Korea. This section analyzes to what extent the domestic laws of
the United States and South Korea have advanced human rights protection
in North Korea. 140
1. US North Korean Human Rights Act of 2004
Human rights groups, specifically the North Korea Freedom Coalition and
Christian based groups within the coalition, claim a critical role in the passage of the North Korean Human Rights Act of 2004.141 The Act's predecessor
was a proposed bill entitled "North Korean Freedom Act of 2003," which
was sponsored with bipartisan support from Kansas Republican Senator
Sam Brownback and Indiana Democratic Senator Evan Bayh. 142 The bill
of the North Korean Freedom Act was controversial for several reasons. It
condoned regime change; called for the end of weapons development, sales
and transfers in and with North Korea; prioritized visa and residency status
to North Korean refugees who could share information about North Korea's
weapons program; conditioned humanitarian aid on strict monitoring; and
called for a task force on North Korean criminal activities. 143 These contents
induced criticisms that such a law would undermine nuclear talks, put North
Koreans at higher risk for leaving their country, and withhold humanitarian
aid for the neediest and most vulnerable populations.144 After revisions in

140.

141.

142.
143.
144.

Margesson, supra note 127, at 26. While Japan also passed a North Korean Human
Rights Act in 2006, it primarily focuses on the rights of Japanese citizens abducted by
the North Korean government and their families as opposed to the rights of North Korean
citizens. Id.
NKFC, NKFC and History, available at http://www.nkfreedom.org/index.php?id=11;
Stan Guthrie, North Korea Human Rights Act a 'Miracle,' CHRISTIANITYTODAY, October
2004, available at http://www.christianitytoday.com/ct/2004/octoberweb-only/10-412.0.html?start=3.
North Korean Freedom Act of 2003, S. 1903, 108th Cong. (2003), available at http://
thomas.loc.gov/cgi-bin/bdquery/z?dl 08:sl 903:.
Id. at 4, 204, 206, 207, 403, 502.
Karin Lee, The North Korean Human Rights Act and Other Congressional Agendas, PFO
04-39A, 7 Oct. 2004, available at http://www.nautilus.org/for alsecurity/0439A Lee.
html; Good Friends' Commentary on the North Korean Freedom Act 2003, 2 Mar. 2004,
available at http://www.goodfriends.or.kr/eng/statement-northkor-freedomact.htm.

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Legal Mobilization for Human Rights

both the House and Senate, the bill passed with bipartisan support as the
North Korean Human Rights Act a year later in 2004. While NGOs were
responsible in campaigning for the North Korean Human Rights Act, the
question remains as to how effective this law has been in advancing the
human rights of North Koreans.
The overall objective of the North Korean Human Rights Act of 2004 is
to promote human rights and freedom in North Korea. 14s During 2004-2008,
it authorized funding for (1) NGO programs supporting "human rights, democracy, rule of law, and the development of a market economy in North
Korea" (at $2 million annually); (2) increasing the availability of information
inside North Korea ($2 million annually); and (3) humanitarian assistance to
North Koreans outside of their country without their government's authorization ($20 million annually).146 The Act mandates the appointment of a special

envoy for human rights in North Korea; yearly reports by the US Agency
for International Development on US humanitarian assistance in North
Korea; and the facilitation of refugee applications for North Koreans.1 47 The
Act also encourages a regional framework for human rights dialogue based
on the Helsinki model which is premised on including human rights as an
integral part of a regional security framework.148 Furthermore, it states that
humanitarian aid should be conditioned on monitoring, transparency, and
distribution to the neediest; and that the UNHCR should be more practically empowered to act for North Korean refugees in China. 149 The Act was
reauthorized in 2008 to continue funding until 2012, to upgrade the status
of the Special Envoy to full-time, and calls for more efficient processing of
North Korean refugee applications. 50
The enactment of the North Korean Human Rights Act was not well
received in Seoul, Korea. Because the administration of President Roh Moo
Hyun continued the engagement policy of his predecessor President Kim Dae
Jung, the administration and ruling Uri Party argued that the Act undermined
their efforts for normalization of relations. Progressive NGOs had already
expressed serious concern about the law before it passed, issuing a public
statement that the Act would negate ongoing dialogue for peace on the
Korean peninsula, stimulate refugee outflow to accelerate regime collapse,
and that disturbing similarities were found within the Iraq Liberation Act,
leading them to speculate whether the Act was a precursor to invasion. 151

145.
146.
147.
148.
149.
150.
151.

North Korean Human Rights Act of 2004, 22 U.S.C.A. 7801-7845 (2004) [hereinafter
Act of 2004].
Id. 102, 104, 203.
Id. 107, 201, 303.
Id. 106.
Id. 201, 202, 304.
North Korean Human Rights Reauthorization Act of 2008, 22 U.S.C.A. 7801-45
(2008) [hereinafter Reauthorization Act].
See Korean Civil Society Statement, supra note 41.

HUMAN RIGHTS QUARTERLY

Vol. 32

American conservatives have countered that the Act is not a pretext for regime change and wondered how South Korean objectors could be opposed
to human rights, often without contemplating the deeper history of division
between South Korean conservative and progressive forces on intertwined
issues of communism and human rights.1 12 The election of President Lee
Myung Bak of the ruling Han Nara Dang (Grand National Party) in 2008,
however, reversed the course of the engagement policy. The current South
Korean administration has reduced economic incentives and aid to North
Korea, and voted against North Korea in the latest UN human rights resolution. The South Korean government's stance has since dampened voices in
South Korea opposed to the Act.
The actual results of the North Korean Human Rights Act are in fact
mixed. The two biggest deficiencies of the Act have been the low intake of
North Korean refugees into the United States, and the toothless profile of the
Special Envoy during the initial years of the Act. During 2004-2007, only
thirty-seven refugees were accepted for resettlement by the United States,
as compared to 5,961 in South Korea for the same period.1 13 The most recent figure is sixty-four refugees accepted for resettlement by the US as of
September 2008.154 The first North Korean to receive permanent residency
status in the US was in September 2008.155
Despite the Act explicitly calling upon the State Department to facilitate
refugee applications, NGOs speak of US embassies and consulates abroad
turning away North Koreans who seek asylum.156 North Korea observers
warned that North Koreans would approach US embassies and consular
offices under the assumption that the Act would provide for quicker asylum,
raising concerns that processing would remain slow and tedious under the
post 9/11 milieu of the US Department of Homeland Security, which must
also be sensitive to the possibility of North Korean spies disguised as refugees.1 57 A glitch occurred when a case was tried in a Los Angeles immigration

152.
153.
154.
155.
156.
157.

See, e.g., Balbina Y. Hwang, Spotlight on the North Korean Human Rights Act: Correcting Misperceptions, BACKGROUNDER,10 Feb. 2005, available at http://www.heritage.org/
research/asiaandthepacific/bgl 823.cfm.
See Reauthorization Act, supra note 149 at 2(9), 2(10).
EMMA CHANLElT-AVERY, CONGRESS AND U.S. POLICY ON NORTH KOREAN HUMAN RIGHTS AND REFUGEES:
AND IMPLEMENTATION,
CRS REPORT,at 4 (22 Oct. 2008) [hereinafter CHANLETRECENTLEGISLATION
AVERY] available at http://fpc.state.gov/documents/organization/ 12040.pdf.
Kim Sue-young, N. Korean Defector Gets Permanent US Residency, KOREATIMES,1 6 Sept.
2008, available at http://www.koreatimes.co.kr/www/news/nation/2008/10/116_31111.
html.
NKFC, Congressional Hearing Transcript, Timothy A. Peters, Founder/Helping Hands
Korea, Congressional Testimony before House Committee on International Relations
(27 Oct. 2005), available at http://www.nkfreedom.org/index.php?id=47.
See Karin Lee, supra note 143, at. 3-4; US DEP'T OF STATE,THE STATUSOF NORTH KOREANASYLUM
SEEKERS
AND THE U.S. GOVERNMENTPOLICY TOWARDS THEM (11 Mar. 2005), available at http:ll
www.state.gov/g/prm/rls/rpt/43275.htm; see also U.S. Dep't of State, The North Korean

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2010

court in 2006 over the granting of refugee/asylum status to a North Korean


who had already availed himself/herself of citizenship in South Korea. The
Board of Immigration Appeals in the Department of Justice later overturned
this ruling stating that the Act did not apply to those North Koreans who
8
had already availed themselves of South Korean citizenship., Though the
ROK Constitution provides that North Koreans also have South Korean citizenship (thus meaning that North Koreans would not be afforded refugee
status by a third state), the Act helps to overcome this legal technicality by
stating that:
(a) .

. North Koreans are not barred from eligibility for refugee status or

asylum in the United States on account of any legal right to citizenship they
may enjoy under the Constitution of the Republic of Korea. It is not intended in
any way to prejudice whatever rights to citizenship North Koreans may enjoy
under the Constitution of the Republic of Korea, or to apply to former North
Korean nationals who have availed themselves of those rights.
(b) For purposes of eligibility for refugee status . . . or for asylum . . . a

national of the [DPRK] shall not be considered a national of the Republic of


Korea.

159

The 2008 reauthorization of the Act tries to address the slow intake by recommending better coordination between the United States and South Korea
for North Korean refugees to resettle in the United States.16
The appointment of Jay Lefkowitz as Special Envoy has evoked consternation within and outside the administration. Former President George W.
Bush tardily appointed New York attorney Lefkowitz almost a year after the
"
' Lefkowitz was criticized for his lackluster efforts
enactment of the Act.16
at the role, only to be rebuked by the State Department when he tried to
participate in nuclear talks with North Korea. 62 As encouraged in the Act,
Lefkowitz advocated a Helsinki approach in linking human rights to regional

Human Rights Act: Issues and Implementation, Statements to the House Committee on
International Relations, Subcommittee on Asia and the Pacific and Subcommittee on
Africa, Global Human Rights and International Operations (28 Apr. 2008), available at
http://merln.ndu.edu/archivepdf/northkorea/state/45792.pdf; see also U.S. Dep't of State,
Hearing on the "The North Korean Human Rights Act: Issues and Implementation,"
9 (28 Apr. 2005), available at http://ocha-gwappsl.
Testimony of Arthur Dewey at

unog.ch/rw/rwb.nsf/db900sid/EGUA-6C2KCV?OpenDocument.
158.

6 Apr. 2007, availTIMES,


NK Refugees Settling in South Ineligible for US Asylum, KOREA

able at http://search.hankooki.com/times/times-view.php?term=north+korea++&path=h
ankooki3/times/lpage/nation/200704/kt200704061312251061 0.htm&media=kt.
159.
160.

See Act of 2004, supra note 144 at 302.


See Reauthorization Act, supra note 149 at 3(4).

161.
162.

Id. 2.
Helene Cooper, Rice Rebukes U.S. Envoy Who Criticized North Korea Policy, N.Y. TIMEs,
3 Feb. 2008, available at http://www.nytimes.com/2008/01/23/world/americas/23ihtenvoy.4.9453345.html?.

HUMAN RIGHTS QUARTERLY

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security talks, a perspective that the State Department does not share. 163 The
reauthorization act attempts to rectify the underutilized role of the special
envoy by upgrading the position to a full-time, ambassador rank, now filled
by congressional staff member Dr. Robert King under the Obama administration. 164 The funding mechanism under the North Korean Human Rights Act
is also indicative of some of the tensions in its implementation. Although
the Act authorizes $24 million yearly, the State Department has not actively
requested full appropriation. This prompted congressional supporters of the
Act to send a letter to Secretary of State Condoleezza Rice underscoring
the concern that the administration was not fulfilling its obligations under
the Act. 161 State Department officials claimed that existing funds sufficiently
aided programs for the monitoring of human rights in North Korea. 166 In the
first year of the Act, the State Department's Bureau of Democracy, Human
Rights and Labor (DRL) allocated $250,000 for programs monitoring human
rights in North Korea, with $350,000 in 2005, and $496,000 in 2006.167 For
2008, DRL requested $2 million for programs on human rights and media
freedom. 168 In 2008, NED allocated approximately $1.3 million to nearly a
dozen South Korean NGOs working on human rights. 169 Meanwhile, Ameri-

163.
164.
165.

166.

Jay Lefkowitz, Let's Confront North Korea on Human Rights, WALL ST. J., 23 Dec. 2008,
available at http://online.wsj.com/article/SB1 22999769691029167.html.
See Reauthorization Act, supra note 149 at 3, 8.
Letter from Frank R. Wolf, Henry J. Hyde, Tom Lantos, Christopher H. Smith, Eni F. H.
Faleomavaega, Sam Brownback, Evan Bayh, James A. Leach, and Joseph R. Pitts to The
Honorable Condoleezza Rice, Secretary of State, 21 Feb. 2006, available at http://www.
nkfreedom.org/fileadmin/ImageArchive/secriceletter.pdf.
We are writing to express our deep concern for the lack of progress in funding and
implementing the key provisions of the North Korean Human Rights Act . . . it does
not appear that the administration has included any funds for implementing the act in
1.
its fiscal year 2007 budget request. Id. at
Other reasons provided to explain the low level of funding and transparency are that
labeling of funds endangers refugee assistance programs that operate under code of
anonymity, and also that small grassroots NGOs do not have the capacity for large-scale

funding.

CHANLm-r-AVERY,

supra note 153, at 3, 6.

167.

See Bureau of Democracy, Human Rights and Labor, Fact Sheet: FY 2003-2004 Human
Rights and Democracy Fund Projects: East Asia (26 Apr. 2005), available at http://20012009.state.gov/g/drl/rls/45181.htm; Bureau of Democracy, Human Rights and Labor, Fact
Sheet: FY2004-2005 Human Rights and Democracy Fund Projects: East Asia (28 July
2005), available at http://2001-2009.state.gov/g/drl/rls/50318.htm; Bureau of Democracy,
Human Rights and Labor, Fact Sheet: FY2005-2006 Human Rights and Democracy
Fund Projects: National Endowment for Democracy Programs (6 Dec. 2005), available
at http://2001-2009.state.gov/g/drl/rls/57669.htm.

168.

CHANLETT-AVERY,

169.

See NED Grant Listings, supra note 42. The 2008 grant recipients for North Korea related
projects are Citizens' Alliance for North Korean Human Rights, DailyNK, Database
Center for North Korean Human Rights, Free North Korea Radio Station, InterMedia
Survey Institute, Network for North Korean Human Rights and Democracy, NK Communications, Open North Korea, and North Korea Strategy Center. Id.

supra note 153, at 3.

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Legal Mobilization for Human Rights

170
with Freedom
can NGOs can also apply to the DRL directly for grants,
171
funding.
the
of
House being one of the main recipients
While the State Department has not made full use of authorized funds
under the Act, funding has nonetheless been significant for development
of human rights activities, especially in South Korea. For instance, the DLR
budget for the NED specifically funds program initiatives, research, publications, and online resources of South Korean NGOs to improve domestic
awareness and provide more sophisticated information for an international
audience.' 7 2 The increase in publications, conferences, online presence, and
media profile of these groups in South Korea is evidence of their growth
and sophistication. This maturity has irked progressive NGOs such as the
Sarangbang human rights group, which claim that the NED has historically
provided indiscriminate funding to South Korean NGOs that are more interested in the demise of the North Korean government than in true human
rights protection.' 73
The North Korean Human Rights Act has not been fully implemented in
terms of resettling North Koreans in the United States and appropriating the
annual $24 million authorized by Congress. Nonetheless, both American and
South Korean NGOs have received millions of dollars in funding for their
activities, ultimately mobilizing a more powerful alliance across the Pacific
and helping to solidify a stronger international network for human rights in
North Korea. In this manner, the Act has funded NGOs working towards
their overlapping objectives: increasing radio broadcasts and other access
to information outside of North Korea; assisting North Koreans via underground railroads throughout Asia; assisting North Koreans who are resettling
in South Korea; and raising awareness generally through their institutional
projects. Funding from the United States has especially nurtured the South
Korean NGOs and works in many ways to open a channel for information
and access to refugees for their American counterparts. Therefore, the North
Korean Human Rights Act has had significant impact in funding a more
sophisticated global movement. What remains to be seen is how the Act
and the NGO activities funded under it have concretely advanced human
rights protection within North Korea.

170.
171.

172.
173.

See CHANLETT-AVERY, supra note 153, at 3-4.


The North Korean Human Rights Act of 2004: Issues and Implementation: Joint Hearing
Before the Subcomm. On Asia and the Pacific and the Subcomm. On Africa, Global
Human Rights and International Operations of the Comm. on International Relations,
109th Cong. 109-38 (28 Apr. 2005), available at http://www.foreignaffairs.house.gov/
archives/1 09/20919.pdf.
U.S. Dep't of State, Human Rights and Democracy Fund Projects, Fact Sheet: FY
2005-2006 Bureau of Democracy, Human Rights and Labor, 6 Dec. 2005, available at
http://2001 -2009.state.gov/g/drl/rls/57669.htm.
See Korean Civil Society Statement, supra note 41.

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2. South Korean Bill on North Korean Human Rights


South Korea has a bill pending for its own North Korean human rights act.
Two bills were separately introduced in 2008, which were then integrated
and introduced as a revised bill by the end of the year, signed by twenty
National Assembly members of Han Nara Dang (Grand National Party).174
Under the current Lee Myung Bak administration, which no longer follows the
engagement policy of its predecessors, Han Nara Dang representatives and
175
NGOs have found it easier to push for a North Korea human rights law.
As it currently stands, the bill requires the involvement of various ministries and organizations, such as the Ministry of Unification, Ministry of
Foreign Affairs and Trade, and National Human Rights Commission. Within
the Ministry of Unification, a ten-member North Korea human rights advisory
committee is to be established. Every three years, the Minister of Unification
must devise a basic plan on humanitarian aid and the promotion of human
rights for North Koreans. The Ministry of Unification must also draw up a
publicity campaign for national awareness, and cooperate with the Ministry
of Education, Science, and Technology to implement this in the elementary,
middle, and high school curricula. Meanwhile, a North Korea human rights
ambassador is to be appointed within the Ministry of Foreign Affairs and
Trade to cooperate with the international community on activities related
to human rights protection for North Koreans.
Under the proposed law, the National Human Rights Commission also
has a role in collecting and recording evidence of human rights abuse in
North Korea, specifically on those rights designated in the ROK Constitution,
Articles 10 through 37. The NHRCK must cooperate with the ministries of
Foreign Affairs and Trade, Unification, and Justice, as well as the National
Information Agency in the gathering and recording of this evidence, and
submit their findings to the National Assembly.
Other provisions of the bill include ensuring that humanitarian assistance meets international standards in delivery, distribution, and monitoring
so that aid goes to its intended recipients and is not diverted for military
or political purposes. Furthermore, the government should cooperate and
exchange information with intergovernmental organizations, NGOs, and
foreign governments to draw attention to human rights protection in North
Korea, as well as actively support and provide funding for domestic NGOs
that work on humanitarian aid and North Korea human rights promotion.
As currently composed, the bill is vague in terms of a specific plan,
leaving this to the advisory committee. It also remains to be seen how the

174.
175.

Bukhan inkwon beoban [North Korea Human Rights Bill), No. 3239 (26 Dec. 2008).
(On file with author).
Kim Junghyun, South Korean MPs Eye Human Rights Law for North, REuTERs,12 Aug.
2008, available at http://www.reuters.com/article/latestCrisis/idUSSEO85101.

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Legal Mobilization for Human Rights

ministries, the ambassador, the NHRCK, and the National Assembly are to
coordinate activities with each other, and who is accountable to whom. Additionally, there is the question of funding. The bill states that funding is to
be at least 4,357,000,000 won (approximately $3.3 million) over a five year
period (2009-2013) for its implementation. This includes small reimbursement
fees for advisory committee members to attend monthly meetings, a salary
for the North Korea human rights ambassador, support costs for the ambassador, and a staff salary at the NHRCK for data collection and publication.
Program costs are not specified. This raises the issue of how the different
governmental bodies will procure the necessary budget to carry out their
work. The minimal amount of funding also suggests that domestic NGOs
are unlikely to receive significant amounts from their national government
when considering the $1.3 million that NED funded for South Korean NGOs
in 2008. Introduced by the Grand National Party, and lobbied for by many
of the aforementioned South Korean NGOs, the bill is likely to meet opposition given its inadequacies, especially from those who expect the bill
to provoke more antagonism from the North Korean government. It remains
to be seen how the bill will be further moderated and whether or how soon
it will pass the National Assembly in the near future.
The preparation of domestic legislation concerning human rights in North
Korea in both the United States and South Korea shows that NGOs and
government representatives work together toward human rights protection
of North Koreans. In the case of the United States, the North Korean Human
Rights Act of 2004 has had a significant effect in mobilizing a network of
South Korean NGOs, but less impact in achieving results in terms of resettlement of North Korean refugees, high profile activities of the special envoy,
and most importantly, little effect towards human rights change within North
Korea. Nonetheless, in funding groups that aid escaping North Koreans, the
Act has probably made a difference in the lives of many. As for the South
Korean bill, it is not yet law. While extensive programs by both government
and NGOs, including many church groups, aid North Koreans to settle in
South Korea, a more concrete plan on a human rights strategy regarding
North Korea has yet to transpire in the body of the proposed law. The US
Human Rights Act has empowered human rights NGOs in South Korea, but
the proposed bill may contribute to more discord within Korean civil society
and the National Assembly, returning to the debate of whether elevating
human rights is pretext and means to further undermine the North Korean
government. Overall, domestic legislation may inform and encourage those
in North Korea to leave their country, provide for their safe transit through
Asia, and fund institutional survival for South Korean NGOs that work toward
these goals, but fundamentally it has achieved little in changing the policies
of the North Korean government.

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V. THE NORTH KOREAN PERSPECTIVE


Perhaps the biggest hurdle to advancing human rights in North Korea is
North Korea itself. North Korea claims to espouse human rights principles,
as excerpted by Kim Jong II, in its Constitution and laws, and even as explained in its periodic reports to the UN treaty bodies. For example, in its
2002 core state report on the implementation of human rights treaties to the
UN, North Korea explains that its legal and legislative frameworks support
human rights protection:
The rights provided by the international instruments on human rights are
reliably protected by the Constitution and other relevant laws and regulations.
No right is either restricted or derogated from.
After ratifying several international human rights instruments, the DPRK

amended and supplemented the Constitution and revised or adopted the Criminal Law, the Criminal Procedures Act, the Civil Law, the Family Law and others
176
reflecting the requirements of the instruments.
As for the legislative structure to protect human rights, the North Korean government assigns primary responsibility to the people's committees at all levels,
1 77
and then to the judiciary, procuracy, and people's security organs.
While the report's contents explain what domestic laws exist, or have
been adopted or amended to reflect the rights explicated in the human rights
treaties, the results of concrete implementation remain vague. From the
perspective of human rights groups, the true test of human rights protection
comes not merely in the form of revised laws but whether and how these
laws are implemented to protect the rights and freedoms of individuals.
While testimonial evidence shows otherwise, the North Korean government
has flatly denied accusations of human rights violations by the UN General
Assembly and the international human rights community as fabrications.
Hwang Jang Yeop, a senior official of the North Korean administration
who had defected to South Korea, explains: "North Korea's argument that
it does not have human rights problems is also right. There is no such concept as human rights in North Korea." 178 There is a fundamental disjuncture

176.
177.

178.

See Core Document, supra note 20, at 8-9. This is an expanded version of its earlier
report in 2000: Core Document Forming Part of the Reports of States Parties: Democratic
People's Republic of Korea, U.N. Doc. HRI/COREI1/Add.108 (2000).
See Core Document, supra note 20, at 8. The report also mentions other "public organizations [that work on human rights issues], such as the Institute for the Research of
Human Rights, the Association Supporting the Disabled .. .the Democratic Lawyers'
Association, the bar association, . . . youth league," and trade and women's unions,
without explaining their specific activities. Id.
Yang Jung A, Gathering to Urge for North Korean Human Rights Improvement, DAILYNK, 12 Aug. 2005, available at http://www.dailynk.com/english/read.
php?catald=nk00300&num=250.

Legal Mobilization for Human Rights

2010

on the view of human rights between the North Korean government and
human rights groups around the world. In North Korea's case, the difference in conceptual perception on human rights derives from its socialist
government, the legitimacy of its statehood, and therefore the justification
of destroying the enemy classes of capitalists, landowners and imperialists.
The assurance that people are adequately protected by people's committees
or the courts must be understood in the context of both the state's Juche
ideology and the revolutionary class binary of dutiful state citizens versus
"enemies of the state."
North Korea attributes its concept of human rights to the Juche ideology
of Kim II Sung. 179 Introduced formally in the 1972 DPRK Constitution as a
"creative application" of Marxist-Leninist ideology, Juche is the primary ideological foundation of North Korean government and society.180 Juche refers to
national self-reliance and essentially elevated nationalism over socialism so
that the being of North Korean comes above all else. 8 ' This state ideology
can be understood as a socialist-revolutionary, nationalist, and survivalist
response to the Korean War, and explains North Korea's defensive posture
against what it perceives to be the continuing threats of American militarism,
capitalism, and Western imperialism overall. Given this history, the North
Korean government has established a stark binary between those faithful to
the North Korean state (i.e., Kim II Sung's family, the Korean Workers' Party,
and the Korean People's Army) and those who qualify as "hostile" to the
state.182 The latter category includes not only those with a family history of
landowners, the elite, and capitalists, but also those who criticize the names
of Kim II Sung and Kim Jong II, a sacrilegious and illegal act.
In the socialist tradition, the North Korean Constitution serves as a policy
guideline rather than as a safeguard against the government. 83 While the
North Korean Constitution lists rights for citizens, these theoretically apply
only to those who are dutiful to the state. In return for the people's loyalty,
the state provides social and economic welfare, such as food, housing,
healthcare, education, and cultural activities. This benevolence is revoked for
anyone who rebels against the state. "Enemies" of the state have no rights,
and for the sake of protecting the state, these enemies disappear. Thus, dutiful
citizens are protected from hostile, anti-state enemies. This nationalist-socialist
hierarchy then legitimates the marginalization of and violence carried out

179.
180.

See Core Document, supra note 20, at 6.


Dae-Kyu Yoon, The Constitution of North Korea: Its Changes and Implications, 27 FORDHAM
INT'L

181.
182.
183.

L.J.
1289, 1291 (2004); CONSTITUTION, Ch. I,Art. 4 (1972) (N. Korea).

403-4 (1997).
See BRUCECUMINGS, KOREA'S PLACEIN THESUN: A MODERN HISTORY
See generally HELEN-LouISE HUNTER, KIM IL-SONG'S NORTH KOREA3-11 (1999).
Yoon, supra note 179 at 1289, 1291.

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upon the latter, in much the same tradition of the Stalinist era in the Soviet
Union when violence and gulags were state tools to suppress dissent.184
The socialist interpretation of human rights is that it is a matter of national sovereignty and that no other state has the right to interfere in how a
state manages its internal affairs.18 North Korea claims that the international
legal system is constructed and dominated by the Western imperialist powers, and this claim fits its national, internal discourse when North Korea is
ostracized and shamed using the language of international legal norms. The
socialist view of international law is an expanded view of law itself: that it
is an instrumentalist tool of the bourgeois class.18 6 Thus, international law
is but an instrumentalist tool of the Western imperialist powers, and derivatively, resort to human rights discourse by the international community is
interference with the national sovereignty of North Korea.
The resulting question is whether human rights can ever be leveraged
as an acceptable discourse within North Korea. A strong counter-discourse
can resist pressures from the international community regarding human
rights, which is the situation with North Korea. 87 The main challenge is
that the human rights movement is largely external to North Korea. Without
an engagement structure for dialogue, human rights advocacy groups must
resort to other means to advance human rights protection, such as UN proclamations, assisting North Koreans who are already outside of their country,
and attempting to inform North Koreans inside about the outside state of
affairs. A domestic human rights movement within North Korea is virtually
nonexistent given that criticisms of Kim Jong II and the state of the nation
are made at the risk of being informed against, demotion in family status,
the disappearance of the individual or entire family, imprisonment, torture,
the resulting deprivation of food, and ultimately death. Because one cannot
openly complain of famine and poverty, dissidence is expressed in the form
of departure. The quest for survival becomes the dissident act. Nonetheless,
there are some exceptions. For example, women have demonstrated against
age restrictions to sell goods at markets for the survival of their families,

184.
185.
186.
187.

See Patricia Goedde, Law "of Our Own Style": The Evolution and Challenges of the
North Korean Legal System, 27 FORDHAM INT'L L.J. 1265, 1270-72 (2004).
See G.I. TUNKIN, THEORY OF INTERNATIONAL
LAW 83 (William E. Butler ed. & trans., Harvard
University Press 1974) (stating that "Securing human rights remains and will continue
to remain primarily an internal affair of the state.").
See generally Albert H.Y. Chen, Toward a Legal Enlightenment: Discussions in Contemporary China on the Rule of Law, 17 UCLA PAc. BASIN L.J. 125 (1999/2000) (explaining
the position of Asian socialist states on the bourgeois nature of "rule of law").
See KECK
& SIKKINK,
supra note 5, at 119.

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Legal Mobilization for Human Rights

and students have protested discriminatory army conscription.188 These are


examples of North Koreans expressing immediate grievances. Meanwhile,
some forms of organized dissent are also beginning to take hold. For example,
North Koreans are being secretly trained as journalists and documenting
abuses for publication in the Rimjingang newspaper based in Japan. 189
One of the challenges of the international human rights network is to
contend with the North Korean state ideology when devising alternative
means for human rights protection within North Korea. Human rights campaigns have more success when domestic civil society can mobilize within
a society in concert with larger international incentives, such as in foreign
investment and trade, where economic benefits are tangible. 190 This pattern
means that there are that many more hurdles with respect to mobilizing a
human rights campaign with respect to North Korea given (1) the long period
of trade sanctions placed against it, (2) the unwillingness of the US Congress
to give investment and trade benefits without denuclearization in North Korea,
and (3) the resistance of the US State Department to link human rights with
foreign aid at the risk of complicating denuclearization talks.
Ultimately, human rights must be framed within North Korea's own
discourse. North Korea's insistence that the people's social and economic
welfare are protected can be challenged on the basis of its own Constitution
and laws. The state, even on its own terms, has failed its duty to the people to
provide for adequate food, housing, health, education, etc. The North Korean
leadership should be held accountable for criminalizing citizens' efforts to
manage basic living standards, which the state itself has guaranteed. At the
same time, human rights discourse must take place broadly, not singling out
North Korea, but also taking to task rights violations in South Korea and the
United States. The discussion must move beyond introverted perspectives,
taking into account how each state justifies repression of rights to ensure
national survival, including South Korea's anti-communist laws and US
anti-terrorist laws. NGOs and states that try to apply international norms to
North Korea must first acknowledge the deficiencies of their own states in
abiding by international law. Otherwise, legal mobilization becomes nothing
less than legal instrumentalism in the international arena.
Another consistent mechanism for engagement has been through projects with UN humanitarian agencies such as FAO, WFP and UNESCO.

188.

189.

190.

The Institute for Far Eastern Studies IFES], Women and Police Clash in DPRK Markets,
NK Brief No. 08-3-22-1 (22 Mar. 2008), available at http:Hifes.kyungnam.ac.kr/eng/
m05/sl 0/content.asp?nkbriefNO=1 92&GoP= 11. See also Moon Sung Hwee, Hoiryeong
Students Causing Furore, DAILYNK, 21 Apr. 2009, available at http://www.dailynk.com/
english/read.php?catald=nk01 500&num=4826.
John Sudworth, Going Undercover in North Korea, BBC NEws, 3 Apr, 2008, available
at http://news.bbc.co.uk/2/hi/asia-pacific/7324961 .stm.
See KECK& SIKKINK,supra note 5, at 118.

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From the cases above, one sees that the DPRK government responds differently to the purpose of each UN agency. The DPRK government objects to
UN resolutions that highlight human rights concerns and the appointment
of the Special Rapporteur, whereas it cooperates readily with various UN
humanitarian agencies on emergency provisions to vulnerable populations
such as children, mothers, and the infirm. Whereas North Korea receives
direct and immediate assistance from UN humanitarian agencies, it does
not from UNGA resolutions and reports, which serve as globally public
condemnations of its human rights situation. The beneficiaries of the latter
resolutions and reports are human rights activist groups that can leverage the
legitimacy of these intergovernmental pronouncements for their campaigns.
From UN examples, North Korea cooperates better with UN agencies on
specific projects of immediate benefit to its population, whereas it is uncooperative on blanket mandates from the larger UN body, whether the Security
Council or the General Assembly. This suggests that inroads for cooperation
are possible on technical assistance projects focusing on food, agriculture,
medical, educational and other types of humanitarian assistance to North
Korea. If these types of projects can be modeled upon and duplicated in
terms of approach and method, human rights protections can proceed on
more ground level.

VI. CONCLUSION
This article asks how the international human rights community has mobilized international and domestic laws to advance human rights in North
Korea, and how effective these attempts at legal mobilization have been.
The findings show that international and domestic laws have been more effective in organizing a stronger human rights network and in aiding North
Koreans that are already outside of North Korea seeking resettlement, but
that transnational legal mobilization has had minimal impact in advancing human rights protections in North Korea. Although North Korea has
reformed a number of laws and policies to comply with the international
human rights treaties, continuing testimonies from North Korean refugees
inform otherwise.
Both state and non-state actors have resorted to international law. The
UN has employed various institutional channels to address human rights in
North Korea via UNGA resolutions, treaty body reports, the appointment
of a Special Rapporteur, and the newly enacted Universal Periodic Review
process of the Human Rights Council. However, none of these various institutional channels has been effective in changing the behavior and practices
of the North Korean government, with the possible exception of legal reforms

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Legal Mobilization for Human Rights

made in response to treaty body reports and tangential engagement with


UN humanitarian agencies. Meanwhile, recourse sought under the Rome
Statute of the International Criminal Court remains inadequate because of
the difficulty of initiating a prosecutorial investigation, proving the criminal
liability of individuals, and gaining physical jurisdiction over North Korean
leaders. NGOs and the UNHCR have also called upon international refugee
law to deal with North Korean refugees, but this has also proven difficult
given the differences in interpretation on what constitutes a refugee, and
China's unwillingness to recognize North Koreans as such, due to its political relationship with North Korea.
Domestic laws have yielded mixed results as well. The US North Korean Human Rights Act has helped to fund and mobilize a strong human
rights movement in South Korea, to partially finance NGOs organizing an
underground railroad in China and third countries, and to get information
inside North Korea through radio broadcasts, but it has not succeeded in
linking human rights to political dialogue with North Korea, nor with settling
North Korean refugees in the United States, and least of all in modifying the
practices of North Korea. The North Korean Human Rights Act has become
a means to help NGOs organize to assist refugees, to disseminate information, and to elevate the agenda of human rights so that is it not completely
overshadowed by denuclearization concerns. The clear effect is that the Act
has provided money for the growth of a strong South Korean NGO movement, one that is intimately tied with the human rights network of American
NGOs and the US government. The existence of the North Korean Human
Rights Act has also spurred South Korean NGOs and legislators to pursue
a Korean version. The South Korean bill has yet to pass. The proposed law
has its own problems with minimal funding, no strategic plan, lack of coordination among various ministries, commissions, and the legislature, but
it emphasizes raising awareness, data collection, and funding for domestic
NGOs. Political disagreement between conservative and progressive parties
would likely complicate its passage. In the end, domestic legislation has
been difficult to implement, whether before or after enactment.
Larger political configurations prevent laws from being fully observed
or implemented. These include North Korea's passive conception of human rights, the complications of denuclearization priorities, polarization in
strategy among human rights advocacy groups, and the relative strength of
bilateral relations between China and North Korea. The inadequacies of the
law mean that NGOs end up relying on an array of mobilization tactics,
and that the law is but an instrument alongside, in some cases, extralegal
means. The challenge is to reframe human rights discourse within North
Korea's own framework, as expounded in its laws and admissions in their
UN treaty reports, to discuss human rights violations in North Korea in rela-

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tion to those in other states, including South Korea and the United States,
and to model dialogue on technically-oriented humanitarian assistance
projects with records of success. With these goals as starting points, legal
mobilization may be more conducive to discourse rather than reflect the
current discord, not just between North Korea and the international human
rights community, but also within the community itself.