The United States’ decision last week to impose additional sanctions on North Korea should come as no surprise to those following the news. Over the past year, North Korea has aggressively ramped up its nuclear and ballistic missile program. In January, the North Korean regime announced that it had successfully carried out its first underground test of a hydrogen bomb, claiming that it can now “wipe out the whole territory of the U.S. all at once.” And almost on a monthly basis since, North Korea has performed tests of its medium-range ballistic missiles. Just two weeks ago, North Korea fired two missiles from its eastern coast that military analysts believe have a possible range of 1,553 to 2,485 miles.
All of this makes it puzzling to see policymakers citing North Korea’s human rights abuses, as opposed to its weapons program, as the rationale for sanctions. While the North Korean regime is by all accounts a flagrant violator of human rights (according to Freedom House, North Korea ranks dead last among the 193 countries in its human rights report), this is nothing new. North Korea’s track record on human rights is as deserving of condemnation today as it was five or ten years ago.
In all likelihood, policymakers are referring to North Korea’s abysmal human rights record as an additional basis upon which to sanction the regime for its nuclear ambitions, rather than an independent grounds for chastising the North Korean government. At first glance, this may seem to be nothing more than a matter of legalese. But if this approach to rationalizing sanctions becomes a trend, it has significant implications for the ability of the United States to flexibly manage sanctions against North Korea, particularly in the event that the two enter into negotiations at some point in the future.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
One need not look further than the United States’ recent experience unwinding sanctions against Iran under last year’s nuclear deal to see the problems to which a jumble of rationales can give rise. Throughout the negotiations leading up to the agreement, the United States and Iran operated under the assumption that the former would unwind all “nuclear-related” sanctions in the event a deal materialized, even though most of the sanctions levied in response to Iran’s escalation of its nuclear program espoused a variety of legal rationales unrelated to Iran’s nuclear program, including Iran’s state sponsorship of terrorism and human rights abuses. Without the ability to frame the negotiations around a legal rationale that reflected the actual impetus behind the imposition of sanctions, U.S. policymakers ended up with a partial sanctions relief package whose proportionality to Iran’s concessions they still struggle to justify. In the eyes of the Iranian regime, the United States has not given up enough, continuing to apply sanctions it imposed in response to Iran’s escalation of its nuclear program, like the ban on dollar-clearing, that disincentivize multinationals from transacting with Iranian entities. At the same time, critics of the deal argue that Washington has given away too much, specifically citing the fact that the United States has pledged to dismantle sanctions that it originally rationalized on grounds unrelated to Iran’s nuclear program. With Iranian leaders threatening to back out of the agreement and neither major U.S. presidential candidate expressing a desire to further engage with Iran, the viability of the Iran deal now seems to be at stake.
To be sure, the criticism generated by the Iran deal has to do with much more than the semantics of how the United States has rationalized sanctions relief. What is important, though, is that in the absence of a legal rationale that accurately reflected the underlying reason for its imposition of sanctions against Iran, U.S. policymakers lost an opportunity to frame expectations around sanctions relief. This has not only undermined the long-term sustainability of the deal but has done so at the expense of the United States’ credibility in the international arena. The Iranian regime can make a case to the global community that the United States is not living up to its end of the bargain by continuing to apply sanctions it originally imposed in response to Iran’s nuclear program, while critics at the opposite end of the political spectrum can criticize U.S. officials for unjustifiably lifting formally non-nuclear sanctions against Iran.
The United States should apply these lessons to its sanctions efforts against North Korea. Rather than justify new sanctions on the basis of a laundry list of wrongs that can potentially hamstring future negotiators, policymakers should predicate sanctions in terms of limited, defined policy grounds that focus on the underlying conduct at issue. Congress, which has been active in formulating sanctions policy in recent years, can play a special role in instilling discipline in this process by coupling a statutory sanction’s defined rationale with a presidential waiver power appropriately tailored to that rationale. Unlike most of today’s statutory sanctions, which empower the president to broadly waive sanctions whenever a waiver is “in the interest of national security,” a more narrowly tailored waiver authority would delineate steps a target country must take in order for sanctions to be lifted, thereby clarifying the expectation of all parties as to which policy issues implicate which sets of sanctions. Congress can ensure executive flexibility in diplomatic negotiations by articulating the minimum actions a sanctioned country ought to take in terms of standards that generally define what the target country must do to meet the threshold for a waiver, while affording the president the discretion to determine what conduct actually satisfies this threshold.
Today, a new round of negotiations with North Korea may seem inconceivable. But carefully thinking through how to justify sanctions will allow the United States to more effectively define public expectations if and when negotiations do occur, enabling the U.S. to deliver a deal that it can more credibly defend abroad and at home.
Sahand Moarefy is a former investment banker and management consultant and a graduate of Harvard College and Harvard Law School. This article builds on research from a paper on the Iran deal’s problematic construct of sanctions relief, put out as a working paper on Lawfare.