RUTHFULLY YOURS

The United Nations Security Council unanimously adopted a resolution on March 2^nd that imposes tough new sanctions and tightens some of its existing measures against North Korea (the DPRK). Resolution 2270 (2016) is the Security Council’s strongest response to date to the rogue North Korean regime’s ongoing nuclear and ballistic missile-related test activities in violation of a series of prior Security Council resolutions. The triggering events leading up to this latest resolution were North Korea’s January 2016 nuclear test and February rocket launch. These provocations were too much even for China, North Korea’s closest trading partner, which cooperated constructively with the United States to reach consensus on the resolution’s text after several weeks of negotiations.

President Obama issued a statement following the vote that highlighted his belief in the importance of the resolution: “Today, the international community, speaking with one voice, has sent Pyongyang a simple message: North Korea must abandon these dangerous programs and choose a better path for its people.”

In reality, the latest resolution is just a piece of paper that is unlikely to change North Korea’s behavior. U.S. Ambassador to the UN, Samantha Power, acknowledged that “the true measure of Resolution 2270 will be whether the rigor with which states implement these sanctions matches the rigor we can anticipate the DPRK will apply to attempting to evade them – that’s what they do.”

In fact, unless the United States and its principal allies in the Asian Pacific region and elsewhere are prepared to vigorously enforce the resolution’s terms, including broader restrictions on trade and financial transactions, a more comprehensive arms embargo and the new mandatory cargo inspection regime, North Korea will be more emboldened than ever. Just hours after the Security Council passed Resolution 2270, North Korea showed what it thought of the resolution by firing six short-range projectiles into the sea.

Iran’s flouting without consequence of Security Council resolutions prohibiting Iranian ballistic missile development and tests provides a clear signal to North Korea that it can continue to ignore the Security Council’s resolutions with impunity.

In short, while Resolution 2270 contains some useful new tools to put the squeeze on North Korea, it is all about implementation and enforcement by the member states, including in particular China and Russia.

One example of a useful new tool is that, for the first time, the Security Council has targeted North Korea’s revenue sources in a broad way. It does so by banning exports from North Korea of coal, iron, and iron ore, unless such transactions are determined to be exclusively for “livelihood purposes” and unrelated to generating revenue for North Korea’s nuclear/missile programs or other activities that constitute UN Security Council resolution violations. It also bans exports of gold, titanium ore, vanadium ore, and rare earth minerals.

These export bans, while helpful, may not work so well in practice, however. Countries needing these natural resources are likely to buy first and ask questions later as to how the money North Korea receives will be spent. The “livelihood purposes” exemption opens up a huge potential loophole. Monitoring of North Korea’s disbursement of funds will be virtually impossible.

The resolution also bans transfers of aviation fuel, including rocket fuel, to North Korea. Civil aviation is said to be included within this ban, according to a U.S. official familiar with the resolution. The bulk of aviation fuel in the past has reportedly come from China, which means that China will be primarily responsible for enforcing this ban through self-imposed trade restrictions.

The resolution clarifies a ban on technical cooperation with North Korea on launches using ballistic missile technology, even if characterized as a satellite or space launch. Member states may by and large be willing to abide by this ban so long as dual use technology is not involved that a member state, wanting to trade or collaborate with North Korea, could self-servingly argue is intended exclusively for non-nuclear related purposes. This is a problem for United Nations agencies themselves that have provided dual use technology to North Korea in the past. Just last month, it was reported by CNS News that the “head of a U.N. agency which gets a significant proportion of its budget from U.S. patent applicants transferred U.S.-origin computer equipment with dual-use potential to North Korea.”

In any event, Iran, which has also benefited from such UN dual use equipment transfers, will certainly continue to cooperate fully with North Korea on the development of missile and nuclear weapon technologies.

The resolution imposes new financial sanctions targeting North Korean banks and assets and extends existing freezes. It prohibits member states’ financial institutions from opening new representative offices, branches, or banking accounts in North Korea, and requires them to shut existing ones down, if reasonable grounds exist to believe such financial services could contribute to North Korea’s nuclear or missile programs or UN Security Council violations. Member states are required to prohibit in their territories the opening and operation of new branches, subsidiaries, and representative offices of North Korean banks. All public or private financial support for trade with North Korea, including export credits, guarantees, and insurance, are similarly prohibited where there is concern they could contribute to suspicious activities related to North Korea’s nuclear or missile programs.

While tightening the financial noose around the North Korean regime is a good thing, there are potential loopholes in the resolution’s exceptions for funding “humanitarian assistance” and “diplomatic and consular missions.” There is also little to stop North Korean officials or entities from setting up dummy accounts with cooperating member states’ financial institutions, including shadow banks.

The resolution contains a comprehensive arms embargo on all arms – conventional and otherwise – in and out of North Korea. And while the resolution’s sponsors have made clear that the resolution is not intended to cause more suffering for the North Korean people, the resolution includes a “catch-all” provision to ban the transfer of any item except food or medicine – even if not covered by the arms embargo – that could directly contribute to the operational capabilities of North Korea’s armed forces. This nice-sounding but vague catch-all provision will be subject to multiple interpretations and difficult to enforce. The arms embargo itself will be difficult to enforce, as illustrated by Iran’s import and export of arms for years despite a UN arms embargo imposed on North Korea’s fellow outlaw regime.

One promising measure if enforced is the new mandatory cargo inspection regime procedures to limit North Korea’s ability to transfer UN-prohibited items. The procedures include requiring states to inspect cargo to/from North Korea or brokered by North Korea that is within or transiting their territories. The resolution includes provisions intended to prevent North Korea from end-running inspection of its own vessels or aircraft though charter arrangements with other states. It bans flights of any plane suspected of carrying prohibited items.

Implementation of the mandatory cargo inspection regime will vary by member state. Such countries as the United States, Japan, India, Australia, New Zealand and Western European countries will be able to monitor and intercept suspected cargo vessels if they deem necessary. The U.S. Navy has already taken such action back in 2011 with respect to a North Korean ship it suspected of carrying missile technology, and can be expected to do so again with the increased authority provided by Resolution 2270.

However, Iran will obviously not comply with the cargo or other provisions of this resolution, any more than it has complied with Security Council resolutions directed at Iran itself. One question is whether the U.S. would be willing to risk a military confrontation with both Iran and North Korea if vessels or aircraft with suspected cargo transiting between Iran and North Korea were to be intercepted. The Obama administration’s feckless responses to prior provocations, particularly from Iran, are anything but encouraging in this respect.

While Resolution 2270 calls for the resumption of the Six-Party Talks, and various members of the Security Council continue to hold the door open for negotiations with North Korea, there is little expectation that the megalomaniac Kim Jong-un will curtail his nuclear program. Given North Korea’s track record, the Security Council reserved the right to take further significant measures in the event of continued North Korean nuclear tests or launches. However, short of military action, it is difficult to conceive of what further significant measures would be left for the Security Council to impose that would not be vetoed.

Thus, the stark choice facing the next president of the United States is whether to permit North Korea and Iran, acting in tandem, to move forward with their twin nuclear arms and ballistic missile programs or finally confront them.