While hundreds of trucks and tourists flow across the China-DPRK border unhindered every day, the road of inter-Korean exchange has faced some surprising bumps and barriers in 2019 best illustrated by two key recent examples.
Firstly, what should have been a straightforward January delivery of Tamiflu medication to help North Koreans through the freezing Winter season remains stuck in South Korea.
This is despite the fact that humanitarian exemptions have long existed within the North Korea sanctions regime to facilitate such deliveries.
Secondly, South Korean Journalists reporting on a belated New Years event in the North Korean resort of Mount Kumgang were – in February – barred from bringing cameras and laptops across the inter-Korean border.
This is despite a likely established precedence, as it would have been hard to imagine reporters covering the demolition of the Punggye-ri nuclear site without laptops and cameras in 2018.
So what exactly is going on and why are these seemingly mundane issues causing such problems now?
Not only is the matter complicated, but the answers also depend on who you ask. And though these obstacles have received little press attention outside of South Korea, they’re fundamental for understanding a dynamic fraught with confusion and one which could create major future problems for inter-Korean cooperation.
POINTING THE FINGER
In both cases involving the Tamiflu deliveries and equipment in possession of the journalists, South Korean citizens and cargoes would have to cross the Military Demarcation Line (MDL) separating the two Koreas.
This, consequently, has unique implications which do not exist on North Korea’s borders with either China or Russia, namely that a third party also plays a role in determining what can cross the border: the United Nations Command (UNC).
How, then, is a decision made as to whether or not an activity, person or cargo going to North Korea over the MDL breaches UN sanctions?
“When South Korean nationals visit North Korea, relevant divisions within the Ministry of Unification approve the inbound and outbound of items according to the Inter-Korean Exchange and Cooperation Act,” an MOU spokesperson told NK News.
The ministry then “examines whether there are items that are subject to the international sanctions including that of the United Nations”.
But the process doesn’t stop there when the items cross the MDL as the U.S.-led UNC also has authority over the area and requires additional sanctions verification processes.
“We will check with United Nations Command folks and their Secretariat,” a spokesperson for U.S. Forces Korea / UNC told NK News. “They receive the official requests to cross, process and are involved.”
As a result, close coordination between the U.S. and ROK is logically required for many inter-Korean activities, and that’s precisely where issues have recently come to the fore.
On Tamiflu, question marks on what, exactly, South Korean authorities were intending to send along with the medicine appear to be at the core of the problem.
The MOU said on January 8 that Seoul had approved a bill to provide Tamiflu to North Korea and that it planned to deliver the goods “in the near future” after consultation with Pyongyang.
The decision was finalized less than three weeks after the Trump administration reportedly gave a green light for South Korea to provide the Tamiflu at the second face-to-face meeting of the ROK-U.S. working group on December 21.
But less than two days later the MOU said the delivery of 200,000 doses of the medicine and 50,000 sets of early medical detection kits – which would have required UNC authorization to cross the MDL – would be “delayed a little”.
With the issue is still unresolved, the MOU on January 25 said that plans had been postponed further due to an “issue of technology and practical preparation,” prompting South Korean media to speculate that problems with the UNC – which last August controversially blocked an inter-Korean rail survey – may have been causing the delay.
NK News understands from multiple sources that this did not go down well with the UNC, which took the rare step of making its position on the issue publicly known, saying it had “approved the transportation of Tamiflu medication across the inter-Korean border”.
Fast-forward to February 11 and the MOU said the delivery still hadn’t taken place because discussions with North Korea had “not yet completed” and that the “issue of technology and practical preparation” still required more time.
Behind the scenes, NK News learned from multiple sources familiar with the issue that the reason the Tamiflu has still not been delivered is that North Korean authorities simply haven’t taken action to receive it.
The window of opportunity, it seems, was missed.
While the UNC made clear that it provided permission regarding the delivery of Tamiflu, 10 South Korean reporters, however, were then barred from bringing equipment – including cameras and laptops – to the DPRK in order to cover a civilian inter-Korean event held between February 12 and 13 at Mount Kumgang.
That equipment would have needed to be cleared so as to not violate sanctions by not only MOU, but also the UNC, given the delegation would have to cross the MDL to get to the North.
NK News learned from multiple sources familiar with the issue that the reason the Tamiflu has still not been delivered is that North Korean authorities simply haven’t taken action to receive it
But the U.S. and ROK were unable to complete discussions over the equipment due to a lack of time, an MOU spokesperson said on February 13.
The process took “a little longer” than expected, the MOU said, despite the Moon administration’s “utmost efforts”.
The MOU spokesperson later elaborated in a press briefing that there was “no big difference” between Seoul and Washington and that the U.S. “did not make an issue” of the journalists taking the equipment to Mount Kumgang.
But when asked whether bringing equipment like cameras and laptops to the North was in violation of either UN Security Council (UNSC) resolutions or U.S. domestic laws, unification spokesperson Baik Tae-hyun said: “The issue arose not because of [transfer of equipment] conflicts rules but because the consultation needed more time.”
The MOU spokesperson’s position, however, stood in contrast with comments issued by a South Korea’s Ministry of Foreign Affairs (MOFA) official during a closed-door briefing held on February 14, according to multiple South Korean media.
The ROK foreign ministry also said that equipment would need to go into North Korea in accordance with an exemption contained in the Export Administration Regulations (EAR) of the U.S. Department of Commerce.
A process to receive an exemption would be required because North Korea is not one of the countries allowed temporary exemptions without prior authorization, South Korea’s Hankyoreh newspaper said on February 14.
This, despite MOFA telling NK News in December that, as a principle, “the Korean government has no legal obligation to comply with U.S. sanctions…”.
So, what is actually going on?
A TALE OF TWO TRANSFERS
While U.S. unilateral laws may well have compelled the South Korean Government to make additional checks on the journalists’ equipment and the existence of the UNC meant the ROK could not just unilaterally export the Tamiflu at a time of its choosing, NK News understands that a legalistic debate over how Washington and Seoul assess the scope of UNSC Resolutions also played a role.
Why? In a nutshell, because of a disagreement on how to define the word “transfer”.
Sanctions to stop North Korean nuclear engineers from importing vital foreign components or Pyongyang elites from getting their hands on expensive luxury goods intend to do so by creating prohibitive legal requirements for UN member states around the world.
This is achieved typically with language that says countries “shall prohibit the direct or indirect supply, sale or transfer to the DPRK” of whatever item or commodity the UNSC sanctions architects want to ban.
But while that might seem like a relatively straightforward requirement, there needs to be consensus on what the word “transfer” actually means.
“The answer (in a legal context) is that it generally refers to the movement of rights in an object from one person to another, rather than the movement of the object per se,” says Tristan Webb, an NK Pro contributor and former DPRK analyst for the British Foreign and Commonwealth Office (FCO).
“Accordingly, an item would only be ‘transferred’ to the DPRK if there was a movement of legal right in the object.”
Such a definition would mean no problem, then, for South Korean journalists to bring items in and out of the North.
And that’s even if the luggage included “computer laptops” and “digital cameras” – items respectively designated as examples of banned “luxury goods” in official U.S. and South Korean interpretations of UN sanctions resolutions, which also arguably fall afoul of UNSC 2397’s ban on “electrical equipment” and “machinery”.
But consider the Cambridge English dictionary definition of the word “transfer,” which is “to move someone or something from one place, vehicle, person, or group to another”.
Under such a definition, even the mere temporary geographic movement of prohibited items like “luxury goods” – in this case, the journalists’ laptops and cameras – would breach the UNSC requirement not to “transfer” them into North Korean.
Given the scale of items banned from transfer to North Korea in 2019 under UN resolutions, such an interpretation – including items going in and out of the country in individual’s luggage – could have huge implications for the thousands of people traveling to and from the DPRK every day.
And one would assume that’s not the intention of UN sanctions, to frustrate common people from being able to do a wide range of non-controversial activities while in North Korea.
But what would the implications be if an arms firm could – in a similar way – “transfer” a dozen advanced weapons systems for a year-long exhibition in Pyongyang, inviting the finest of North Korea’s arms industry to attend and study the goods?
If the items all came out of the country after the year-long exhibition was complete, and no change in ownership ever took place, the implication would be that no UNSC sanctions would have been broken – even though North Korean weapons specialists may have had time to completely reverse engineer all the technology.
It might be due to concerns about such possibilities that the 2013 UN Arms Trade Treaty specified that the term “transfer” comprise a much wider range of actions: “export, import, transit, trans-shipment and brokering”.
And while the language in UNSC resolutions surrounding “transfer” is less specific, the absence of wording that limits the definition to only comprise a “permanent transfer” of banned items could be argued as implying that “temporary” transfers – even in luggage that goes in and out of the country – are therefore also prohibited.
So what do the government bodies responsible for decision-making on the issue think?
“Please refer to the Ministry of Foreign Affairs for authoritative interpretation of the UNSC sanctions,” a Ministry of Unification spokesperson told NK News.
After six requests, South Korea’s Ministry of Foreign Affairs eventually told NK News: “With regard to the application of the prohibition on the transfer of goods prohibited by the UN Security Council, we ask you to make an inquiry to the sanctions committee.”
But what would the implications be if an arms firm could – in a similar way – “transfer” a dozen advanced weapons systems for a year-long exhibition in Pyongyang
The 1718 Committee responsible for North Korea sanctions implementation did not immediately respond to NK News with a comment on the issue.
A spokesperson for the UN Command, however, said: “This query is best directed to the US Treasury who defines this”.
But Treasury – which has a definition suggesting U.S. unilateral sanctions law views a “transfer” as necessitating a change of ownership – provided no comment on whether the movement of items between the Koreas constituted a UN sanctions breach.
And despite four requests for specifics on the issue, the State Department simply said: “The United States continue to work with governments around the world to ensure all nations are fully implementing sanctions obligations.”
A lack of clarity, then, is apparently the only thing that’s consistent about the way officials see how UN sanctions should be enforced – and that’s not even taking the longarm nature of Washington’s myriad unilateral sanctions into account.
A FUSS ABOUT NOTHING?
The seemingly microscopic nature of concerns relating to what would probably only constitute “micro” sanctions violations are, on the surface, difficult for many to understand.
But in the context of South Korea’s decision last year to not follow UNSC rules when it exported over 300 tons of oil to North Korea and to not to seek an exemption for its export of one million dollars worth of construction equipment and material specifically sanctioned by the UN to North Korea, American concerns about apparently much smaller issues are easier to understand.
Yet from a bigger picture perspective, sanctions specialist and blogger Joshua Stanton said the U.S. interest in granular inter-Korean issues was difficult to understand when considering the lack of action on much more serious international sanctions violations.
“I hate to second-guess the lawyers in the administration who are doing the hard work of implementing the law, but I’m frankly puzzled at why Treasury chose to apply the law rigidly to journalists whose activity is arguably outside the law’s intent, and yet overlook the application of mandatory sanctions to major money laundering operations like Glocom, Pan Systems Singapore, OCN, T Systems, Malaysia-Korea Partners, Chinpo Shipping, and Shinheung Trading,” he said.
“I’m not privy to Treasury’s internal deliberations or discussions with the South Koreans, but I’m not convinced that this is the strategically wise place to take a hard line.”
A lack of clarity, then, is apparently the only thing that’s consistent about the way officials see how UN sanctions should be enforced
But he said, nevertheless, that “the South Koreans need to learn to read the sanctions laws, take them seriously, and plan around them.”
“I agree with the Trump administration that South Korea is pushing the limits of the sanctions and sometimes violating them outright, and I commend it for having the principle to resist that.”
However, former British official Webb said that while it was possible problems emerged on Tamiflu and the laptops due to a “good faith” but “institutionally strict” U.S. legal interpretation of UN sanctions, there was another possibility: Washington may be using “UNC to leverage its influence on the Korean peninsula”.
“Evidence supporting this third possibility include the former Secretary of State Rex Tillerson’s December 2017 comments ahead of a sender-state meeting in Vancouver, where he pushed for the UNC to advance pressure aiming for talks, and US Army General Vincent Brooks’ ambition to make UNC “more vital and more relevant” before he left the post last year.”
And that’s something that Dr Dong-jin Kim of Trinity College Dublin might also agree on.
“In my personal opinion, this is about the U.S. DPRK negotiations, (as) the U.S. would not want to see the inter-Korean relations improving beyond the progress in their own negotiations with the DPRK,” he told NK News.
And in fact, that’s something which Secretary of State Pompeo has directly alluded to last November.
“We have made clear to the Republic of Korea that we do want to make sure that peace on the peninsula and the denuclearization of North Korea aren’t lagging behind the increase in the amount of interrelationship between the two Koreas,” Pompeo said.
“We view them as tandem, as moving forward together, we view them as important parallel processes,” he added.
But for Professor Sung-yoon Lee at Tufts University, U.S. interest in monitoring such issues closely is for a more fundamental reason.
“The U.S. government is wary of sanctions-busting “inter-Korean cooperation” projects, as they seem like harmless-looking foreplay before the more consequential consummation entailing billions of dollars in payments takes form.”
Whatever one’s reading of the problems afflicting inter-Korean cooperation in 2019, it seems clear that sanctions are posing hurdles to what would otherwise seem to be relatively mundane forms of inter-Korean cooperation.
“From the perspective of humanity, it is absolutely not worth spending such political currency on this,” said Webb of the bigger picture perspective, even though there might be tactical advantages for relevant countries on the issue.
“We really need to create a more efficient and transparent institution/platform, when it comes to the current international sanctions as well as the procedures to get approvals for people engaging with the DPRK,” Dr. Kim said.
“Otherwise, it would take long time for any progress made in the political negotiations to translate into the field, and the gap between people’s expectations and the delayed implementation of the agreements would negatively affect the subsequent political negotiations, as we have seen in the past.”
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Featured Image: Dorasan Station, DMZ, South Korea by dconvertini on 2013-09-29 06:29:09