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Published online by Cambridge University Press: 07 May 2025
In the waning months of the Bush administration in 2008, certain changes to U.S. legal and regulatory frameworks were made to facilitate improved U.S. bilateral relations with North Korea. These changes were made in return for Pyongyang's progress on disabling its nuclear facilities and in accordance with the Six-Party talks agreements. Among the most notable were the removal of North Korea from the Trading with the Enemy Act (TWEA) and the rescission of North Korea's designation as a State Sponsor of Terrorism (SST). However, closer examination reveals that these instruments were replaced with new or different legal restrictions which essentially rendered the actions moot.
On the same day that President Bush issued the proclamation terminating the exercise of authority under TWEA with respect to North Korea, he also reauthorized Executive Order 13466. This order characterized North Korea's nuclear activities as an “unusual and extraordinary” threat to U.S. national security, and authorized the continuation of certain restrictions with respect to North Korea and North Korean nationals. Similarly, although the U.S. rescinded North Korea's designation as an SST, the legal restrictions that were applicable under the SST remain in place under the auspices of different laws.
With only symbolic changes to the U.S. legal regime regarding North Korea, the Bush administration left itself vulnerable to charges of duplicity, potentially giving Pyongyang another justification to reject the Six-Party talks. The wide-ranging restrictions placed on North Korea can only mean U.S.-North Korea relations will remain tenuous at best. In order to bring North Korea to negotiations, whether the Six-Party or some other negotiations format, encourage its continued denuclearization, and ultimately put US-North Korean relations on a normal footing, the Obama administration must be willing to make significant changes in the application of U.S. legal sanctions.
1 United States Code, Title 50 War and National Defense, Chapter 106, 40 Statute 411, Section 5; TWEA.
2 The specific language, which can be found in the appendix, states that the President has the authority to “investigate, regulate, or prohibit, transactions in foreign exchange, transfers of credit or payments between, by, through, or to any banking institution, and the importing, exporting, hoarding, melting, or earmarking of gold or silver coin bullion, currency, or securities and “investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property.“
3 United States Code, Title 3 The President, Chapter 34 National Emergencies.
4 United States Code, Title 3 The President, Chapter 4 Delegation of Functions, Section 301 General authorization to delegate functions.
5 Executive Order 13466
6 Ibid
7 United States Code, Title 50 War and National Defense, Chapter 35 International Emergency Economic Powers.; Public Law 95-223 IEEPA.
8 Ibid
9 “investigate, regulate, or prohibit, any transactions in foreign exchange, transfers of credit or payments between, by, through, or to any banking institution to the extent that such transfers or payments involve any interest of any foreign country or a national thereof the importing or exporting of currency or securities by any person, or with respect to any property, subject to the jurisdiction of the United States.”
10 “investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, with respect to, or transactions involving, any property subject to the jurisdiction of the United States.”
11 Office of Foreign Assets Control. “Our Mission.” U.S. Department of Treasury.
12 “no license or authorization contained in or issued pursuant to this part shall be deemed to authorize any transaction prohibited by any law other than the Trading With the Enemy Act, the Foreign Assistance Act of 1961, or any proclamation, order, regulation or license issued pursuant thereto.”; United States Code of Federal Regulations, Title 31 Money and Finance, Chapter V Office of Foreign Assets Control, Part 500 Foreign Assets Control Regulations, Section 101 Relation of this part to other laws and regulations.
13 United States Code, Title 50 War and National Defense, Chapter 106, 40 Statute 411, Section 5; TWEA.
14 United States Code of Federal Regulations, Title 31 Money and Finance, Chapter V Office of Foreign Assets Control
15 Part 500 Foreign Assets Control Regulations, Sections: 201, 204, 411, 412, 549.
16 SST is an abbreviation used by the U.S. Department of State
17 U.S. Department of State. “State Sponsors of Terrorism.”
18 the EAA allows the export to such countries as long as the “Secretary of State notifies the Committee on International Relations of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs and the Committee on Foreign Relations of the Senate at least 30 days before issuing any validated license. Public Law 96-72 Export Administration Act; Public Law 106-48 To provide for increased penalties for violations of the Export Administration Act of 1979, and for other purposes.
19 Public Law 96-72 Export Administration Act; Public Law 106-48 To provide for increased penalties for violations of the Export Administration Act of 1979, and for other purposes.
20 Ferguson, Ian F. “The Export Administration Act: Evolution, Provisions, and Debate.” CRS Report for Congress. RL31832. January 9, 2008.
21 Ibid
22 Ibid
23 Ibid
24 United States Code of Federal Regulations, Title 15 Commerce and Foreign Trade, Chapter VII Bureau of Industry and Security.
25 United States Code of Federal Regulations, Title 15 Commerce and Foreign Trade, Chapter VII Bureau of Industry and Security, Part 730 General Information, Sections: 730.2, 730.3, 730.5; Part 734 Scope of Export Administration regulations, Section 734.3; Part 736 General Prohibitions, Section 736.2; and Part 738 Commerce Control List.
26 United States Code of Federal Regulations, Title 15 Commerce and Foreign Trade, Chapter VII Bureau of Industry and Security, Part 742 Control Policy—CCL Based Control, Sections: 742.2 – 742.6, 742.11-742.19; Part 744 Control Policy: End-User and End-Use Based; and Part 746 Embargoes and Other Special Controls, Section 746.4
27 United States Code of Federal Regulations, Title 15 Commerce and Foreign Trade, Chapter VII Bureau of Industry and Security. Part 738 Commerce Control List.
28 Arms Export Control Act; United States Code, Title 22 Foreign Relations and Intercourse, Chapter 39 Arms Export Control; Public Law 90-629.
29 Ibid
30 Ibid
31 Department of State Public Notice No. 4023; 67 F.R. 36062
32 Public Law 109-353; 50 USC 1701
33 Ibid
34 Ibid
35 Public Law 106-178; 50 USC 1701
36 Ibid
37 Ibid
38 United States Code, Title 22 Foreign Relations and Intercourse, Chapter 32 Foreign Assistance, Section 2371; Public Law 87-195; Foreign Assistance Act, Part III, Chapter 1 General Provisions, Section 620a
39 Foreign Assistance Act, Part III, Chapter 1 General Provisions, Section 620; or United States Code, Title 22 Foreign Relations and Intercourse, Chapter 32 Foreign Assistance, Section 2370.
40 H.R. 2764; Public Law 110-161
41 Public Law 109-102
42 United States Code, Title 22 Foreign Relations and Intercourse, Chapter 7 International Bureaus, Congresses, Etc, Section 262p-4q; Antiterrorism and Effective Death Penalty Act; Public Law 104-132.
43 Ibid
44 With exception to UNICEF and the IAEA; United States Code, Title 22 Foreign Relations and Intercourse, Chapter 32 Foreign Assistance, Section 2227; Public Law 87-195; Foreign Assistance Act, Part III, Chapter 1 General Provisions, Section 307
45 Ibid
46 “Voting Powers.” World Bank.; Kamieniecka, Monika. “Voting Share at the IMF and World Bank 2009.” Global Policy Forum.
47 The World Bank is composed of the International Bank for Reconstruction and Development, International Finance Corporation, International Development Association, and Multilateral Investment Guarantee Association.
48 Kamieniecka (2009)
49 “Resolution 1718 (2006).” United Nations Security Council. October 14, 2006.
50 “Resolution 1874 (2009).” United Nations Security Council. May 25, 2009.
51 The laws listed are not given in entirety but display sections that are most relevant to the situation pertaining to North Korea today.
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