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ABSTRACT
During the COVID-19 pandemic, the Democratic People’s Republic of Korea adopted the Emergency Communicable Disease Control Act. The DPRK’s legislative response is noteworthy in five dimensions: effectiveness of communicable disease control; predictability of the authority’s response; response to emerging non-traditional security challenges; development of legal techniques; and the role of law in the society. Several provisions in the Act however prompt questions about its compliance with international human rights norms, concerning the threshold for declaring a state of emergency, the proportionality of measures, and the prohibition of discrimination. The article explores whether this legislative response leads forward or backward for the DPRK.
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No potential conflict of interest was reported by the author(s).
Notes
1. The UN Special Rapporteur on the human rights situation of the DPRK wrote that the DPRK declared a state of emergency on the date when the Political Bureau expanded meeting at the Workers Party of Central Committee decided to upgrade to ‘Maximum Emergency System’, 25 July 2020, rather than 28 January 2020 when the DPRK declared a transition to the State emergency communicable disease control system, in the course of discussion of the impact of COVID-19 on the human rights situation (UN Special Rapporteur, Citation2020, October 14, para 10). In fact, the DPRK authorities explicitly used the term ‘state of emergency’ concerning Gaesung city specifically, in direct translation, for the first time during the aforementioned meeting. However, considering the specific measures taken by the DPRK after declaring the transition into the State emergency communicable disease control, as well as the structures and content of the ECDCA adopted after the proclamation, it would be reasonable to regard the transition into the State emergency communicable disease control system as a proclamation of the state of emergency.
2. In 1997, the DPRK sought to withdraw from the ICCPR when the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities adopted resolution 1997/3 condemning the situation of human rights in the DPRK. (UN Sub-Commission, Citation1997, August 21) However, since the ICCPR does not contain a withdrawal provision, the Secretary-General expressed the view that a withdrawal from the ICCPR would not appear possible unless all State parties to the Covenant agree with such a withdrawal (Evatt, Citation1999). The Secretary-General circulated to all State parties and other signatories the exchange of written communications between the DPRK and the Secretary-General. (UN Secretary-General, Citation1997, November 12) The DPRK then accepted and complied with its reporting obligations as a State party to the ICCPR by submitting the Second Periodic National Report on 25 December 1999 to the Human Rights Committee (UN Human Rights Committee, Citation2000, May 4; Citation2001a, August 27).
3. Article 4, paragraph 2, of the ICCPR explicitly prescribes that no derogation from the following articles may be made: Article 6 (right to life), Article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent), Article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude), Article 11 (prohibition of imprisonment because of inability to fulfil a contractual obligation), Article 15 (the principle of legality in the field of criminal law, i.e., the requirement of both criminal liability and punishment being limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in cases where a later law imposes a lighter penalty), Article 16 (the recognition of everyone as a person before the law) and Article 18 (freedom of thought, conscience and religion).
4. General Comment No. 29 (2001) explained that proclamation of a state of emergency is ‘essential for the maintenance of the principles of legality and rule of law at times when they are most needed’. It further noted: ‘When proclaiming a state of emergency with consequences that could entail derogation from any provision of the Covenant, States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers’ (para 2). When states of emergency are declared, States that are parties to the ICCPR should meet their legal obligation to provide formal notification through the UN Secretary-General in accordance with Article 4, paragraph 3. The international obligation to notify is distinguished from the proclamation in terms of the legal effect, in that notification is not a necessary condition that renders lawful the taking of emergency measures, serving instead only international supervision by the other State parties and the Human Rights Committee, whereas official proclamation is a conditio sine qua non and serves domestic supervision (Schabas, Citation2019, p. 95).
5. The Human Rights Committee did not evaluate whether the situation amounted to the existence of a public emergency per se. When the Ebola virus outbreak occurred in 2014, the Human Rights Committee was concerned that measures taken by Liberia did not fully comply with the rationale and scope of Article 4, paragraph 1 of the ICCPR and the General Comment No. 29 (2011) on derogations from provisions of the ICCPR during a state of emergency, and further commented with regret that Liberia did not inform other State parties to the ICCPR, through the Secretary-General, of the provisions from which it derogated during the declared state of emergency (UN Human Rights Committee, Citation2018, August 27).
6. In response to COVID-19, although a number of States officially proclaimed states of emergency in accordance with Article 4 of the ICCPR, not all of these States performed their duty to notify to the Secretary-General. In this regard, the Human Rights Committee ‘called upon all State parties that have taken emergency measures in connections with the COVID-19 pandemic that derogate from their obligations under the Covenant to comply without delay with their duty to notify the Secretary-General thereof immediately, if they have not already done so’ (UN Human Rights Committee, Citation2020, April 30, para 1).
7. For instance, France adopted the emergency law no. 2020–290 on 23 March 2020 to declare a territory-wide state of public health emergency for a period of two months in response to the global COVID-19 pandemic. According to Public Health Code Article L3131-12, adopted by the aforementioned emergency law no. 2020–290, a public health emergency requires the existence of a ‘health catastrophe endangering, by its nature and its gravity, the health of the population’. It is declared by a Council of Ministers decree on the basis of a report by the Health Minister, which must include de jure and de facto justifications, in particular the scientific data on which the decision is grounded.
8. The DPRK adopted the Management of Pyongyang Act in 1998. This Act stipulates the priority production of food and fuel to be supplied to Pyongyang, and the preferential supply of facilities, goods and raw materials necessary for commercial, food and convenience services in Pyongyang.
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Kyungok Do
Kyungok Do is a Director of Peace Research Division at Korea Institute for National Unification. She received her B.A. in Anthropology, LL.B. and LL.M. from Seoul National University, and LL.M. from University of Michigan Law School. She holds a Ph.D. in International Law from Seoul National University. She focuses on peace regime, sanctions and human rights, and has authored numerous books and articles including White Paper on Human Rights in North Korea (KINU, 2015-2019, co-author); Pathways to a Peaceful Korean Peninsula (KINU & Columbia Law School, 2016, co-author); The Impact of Sanctions on the Enjoyment of Human Rights (KINU, 2018, co-author); and ‘A Two-phased Approach of the End-of-War Declaration and Peace Agreement’, 28 Unification Policy Studies 27 (2019). She is a member of the Presidential Commission on Policy Planning, North Korea Human Rights Committee of the National Human Rights Commission, Policy Advisory Committee of the Ministry of Unification, and Korean Society of International Law. She is also an Adjunct Professor at University of North Korean Studies.
Yejoon Rim
Yejoon Rim is an Assistant Professor at College of Public Policy, Korea University. Previously, she worked as a research fellow at the Korea Institute for National Unification. She received her LL.B. and LL.M. from Korea University, and LL.M. from Georgetown University Law Center. She holds a Ph.D. in International Law from the Graduate Institute of International and Development Studies, Geneva. She focuses on statehood, responsibility to protect and human rights, and has authored numerous articles including ‘Two Governments and One Legitimacy: International Responses to the Post-Election Crisis in Côte d’Ivoire’, 25 Leiden Journal of International Law 683 (2012); ‘Human Rights of North Korean Migrant Workers: Opportunity to Work or Risk of Forced Labour?’, 35 Netherlands Quarterly of Human Rights 51 (2017); and ‘State Continuity in the Absence of Government: Underlying Rationale in International Law’, 32 European Journal of International Law 485 (2021). She is a member of the Policy Advisory Committee of the Ministry of Unification and Korean Society of International Law. She is also an Attorney at Law admitted to the New York Bar.