Will Congress Reach for N. Korea’s Economic Jugular?

The Joongang Ilbo reports that Congressmen Tom Lantos and Frank Wolf are working on a new bill that will “End Dictatorship and Assist Democracy.” From where I sit in Northwest, I can see eyes rolling all the way from Georgetown to Foggy Bottom. I will try to get you some details.

I don’t yet know whether the bill will be merely symbolic or will have real consequences for the targeted dictatorships, but I have come to believe that in the case of North Korea–one of the alleged prime targets of the new bill–its finances are its key vulnerability. Trade, aid, and engagement aren’t working their softening magic on North Korea. They are prolonging the regime and the suffering it inflicts on its people. Thomas Barnett’s theories of “connectedness” are fine for authoritarian regimes that try to strike a compromise with financial openness, but North Korea isn’t compromising its firewall. It needs to be rebooted.

Given the new (and in my view, wise) emphasis on constricting North Korea’s finances, impeded by our difficulties in getting Seoul and Beijing to play along, allow me to squirt some gasoline on the fire. I tapped out this draft provision that would give North Korean refugees who were forced to perform slave labor the right to sue business entities that participated in or profited from their servitude. It expands upon the Alien Tort Claims Act, which was first enacted in the 18th Century, and would force every company that does business with North Korea to either (1) get out fast, (2) get its assets out of the United States fast, or (3) face a withering rain of lawsuits not seen since the demise of I.G. Farben.

The concept isn’t exactly novel. Unocal Corporation was recently forced to settle a suit by Burmese who alleged that their government forced them to build a road for a Unocal gas pipeline. The settlement will undoubtedly have a chilling effect on the finances of the Burmese regime. The idea is to make it prohibitively risky for companies of any size to invest in North Korea. Suggestions invited, even from Republicans who tend to absolutely hate the idea of giving lawyers more work.

For purposes of section 1350 of title 28 of this Code, the following are torts in violation of the law of nations, for which the United States courts shall have original jurisdiction to hear claims:

(1) The use or employment of forced labor;

(2) Engaging in any transaction with any business, venture, government, enterprise, or other entity that the defendant knows or reasonably should know makes direct use of forced labor.

(a) “Transaction” shall include buying, selling, trading, bartering, lending, borrowing, leasing, manufacturing, finishing, packaging, importing, exporting, managing, providing technical assistance, investing, financing, shipping, storing, warehousing, marketing, assisting with licensing or the clearing of customs, or any activity that directly and knowingly furthers the production, sale, provision, or distribution of any product or service produced in whole or in part with forced labor.

(b) For purposes of this section, “forced labor” shall mean full-time employment performed because of government compulsion, which a reasonable person of the plaintiff’s nationality, in circumstances similar to those of the plaintiff, would not feel free to refuse to perform. Compulsion includes expressed and implied threats of torture, imprisonment, or death; or threats to torture, imprison, or kill any member of plaintiff’s immediate family.

(c) It is an affirmative defense to liability under this section that the defendant had no knowledge that the business, venture, transaction, or enterprise made use of forced labor, or that it could not reasonably have ascertained knowledge of such use. The defendant shall have the burden of proving this affirmative defense by clear and convincing evidence.