Unpacking the DPRK-U.S. Leap Day 'Agreement'

New Paradigms Forum

Senior Director for WMD and Counterproliferation, National Security Council

At the time I write this, the Korean Peninsula is heading for another round of acrimony and tension as the Democratic People's Republic of Korea (DPRK, a.k.a. North Korea) proceeds on track to carry out what it calls a "satellite launch" – currently scheduled to take place at some point between April 12 and 16,  allegedly in celebration of the 100th anniversary of the birth of the impoverished and tyrannical northern dictatorship's founder Kim Il-sung.  As if that weren't enough, South Korean observers apparently suspect the DPRK to be readying a new nuclear weapons test as well, perhaps preparing for a dramatic show of indignation at our indignation over the launch, or in response to the all but inevitable U.S. effort to impose tougher United Nations sanctions afterwards.

At the moment, it is still possible that some way will be found to defuse the crisis, perhaps by having some satellite launch provider (e.g., China) ride flamboyantly to the rescue by volunteering to launch Pyongyang's "satellite" for it, thus providing a face-saving way for the DPRK to back down.  Nevertheless, unless somebody changes course, the DPRK will go ahead with the launch of its so-called "Kwangmyongsong?3" satellite in the next few days.

Make no mistake.  The planned DPRK launch is indeed a great provocation, and would clearly violate North Korea's obligations under international law – specifically, under various United Nations Security Council Resolutions (e.g., UNSCR 1874 of  June 2009) creating legally-binding no-testing obligations pursuant to Chapter VII of the U.N. Charter.  Significantly, however, this is not just a lawyer's gripe.  The launch would be far more than a violation of the DPRK's obligations: it presents a considerable threat to North Korea's neighbors, and indeed to countries much farther afield – including the United States.

Pyongyang has long had at least some nuclear weapons, but it has probably hitherto been unable to deliver these devices over long distances.   As did North Korea's two prior attempts, this so-called "satellite launch" relies upon technology that is indistinguishable from that used in long-range ballistic missiles.  Particularly in the wake of what are widely believed to have been partial or complete launch failures with "Kwangmyongsong?1" in 1998 and "Kwangmyongsong?2" in 2009, a genuinely successful "satellite" launch in 2012 could mean that North Korea can now threaten us and our allies with nuclear attack.  These are not, in other words, penny ante stakes.

All of this provides good reason both to applaud international efforts to press the DPRK to call off its provocative launch and to support the imposition of additional pressures against North Korea if it insists upon launching.  And I do.  Part of the international chorus of complaints about Pyongyang's planned provocation, however, has to do with the way in which the launch seems likely to extinguish the slim hope for progress raised by the so-called "Leap Day Agreement" of February 29, 2012 – pursuant to which the United States said congenial things about the DPRK and committed to providing thousands of tons of food assistance to that dysfunctional country in return for Pyongyang's agreement to freeze nuclear work at Yongbyon and allow International Atomic Energy Agency (IAEA) inspectors to return to that facility.  Much angry ink has been spilled to the effect that – as U.S. State Department spokesman Victoria Nuland put it late last month – the North Korean launch would be "a violation, not only of [North Korea's] United Nations [Security Council] obligations, but of the commitments that they made on Leap Day."

As a result of my own discussions with various U.S. and other experts familiar with the negotiations, however, I've come to wonder what really happened on February 29.  It's certainly possible that North Korea simply reneged on the deal, of course, as indeed Obama Administration officials suggest.  (After all, Pyongyang has in the past distinguished itself by breaking every other nuclear-related commitment it has ever made.  Why should 2012 be any different?)  It is also disturbingly possible, however, that there wasn't really a Leap Day "agreement" in the first place with regard to missile issues – and that disingenuously self-exculpatory post hoc "spin" from the Obama Administration has been used to disguise how little a meeting of minds there may have been between the sides negotiating in Beijing in February.

Let me explain.  It is certainly true that the Obama Administration has clearly and repeatedly claimed that there was an "agreement" on February 29, by the terms of which North Korea promised not to do what the United States says it should not do with regard to testing missile technology.  There doesn't appear to exist any actual agreed text from the Leap Day accord, but a U.S. statement issued to the IAEA on March 6 provides an authoritative American position: pursuant to the February 29 "agreement," it is said, "the DPRK ... agreed to implement a moratorium on long-range missile launches," among other things.  This phrasing echoes Victora Nuland's own announcement of the Leap Day agreement on February 29 itself: "the DPRK has agreed to implement a moratorium on long-range missile launches."   And this phrasing fits also with the phrasing of the statement announcing the deal that was carried on North Korea's official KCNA news service, which said that Pyongyang had "agreed to a moratorium on … long-range missile launches."    So far, so good, right?  An agreement?

Perhaps not.  This apparent agreement on the Leap Day deal's coverage of "long-range missile launches," is actually part of the problem.  The DPRK has long insisted that this phrasing doesn't cover launching satellites, which it says are part of its development of the peaceful uses for outer space, and are thus entirely different things from ballistic "missile" launches.  Pyongyang claims that on February 29 it agreed not to do the latter, but in no way agreed to refrain from the former.

I'd be the first to admit that North Korea's argument is substantively silly.  As noted earlier, the technologies involved are the same, and for all intents and purposes a "satellite launch" is a ballistic missile test.   The problem, however, is that it doesn't appear that DPRK negotiators were at all shy about making this position crystal clear to Obama Administration diplomats from the outset of the most recent talks.  Nor could there have been much surprise in Washington at the idea that North Korea had been preparing just such a "satellite" launch for months.

According to press reports, the DPRK is thought to have begun preparing a large new missile launch facility at Dongchang-ri as early as the year 2000, having largely completed it by mid-2009.  By June 2009, in fact, the North Koreans were already reported to be preparing to test an intercontinental ballistic missile at Dongchang-ri – a longer version of the so-called Taepodong-II missile on which the DPRK had attempted its second "satellite" launch in April of that year.  By early 2011, satellite images reportedly showed the North Koreans putting some finishing touches on their new launch facility and getting it ready to go.

Nor were the North Koreans particularly shy about this, apparently repeatedly hinting at their plans for an upcoming launch.  In early 2011, for instance – not long after Dongchang-ri was said to have been made ready for action – the North's official KCNA news service began stepping up its coverage of other countries' launches of civilian satellites.  Some observers interpreted this, apparently quite correctly, as laying the political and rhetorical groundwork for a new DPRK "satellite" launch.  (The DPRK's self-justificatory mantra is that all countries have a right to develop peaceful uses for outer space, and that satellite launches are an indispensable part of exercising this right.  Everyone else does such launches, Pyongyang argues, and so may North Korea ... no matter what the Security Council says.)

And indeed the DPRK's official news service was not subtle about this.  On November 23, 2011, for instance, the KCNA news service declared that it had become a "strategic goal" of many different countries "to advance into vast space, an engine for future science and technology and economic development."  Citing its 1998 and 2009 launches, KCNA said that "[n]o one can bar the DPRK form advancing into space," and described the country as "advancing toward its goal for space development chosen by it as required by the trend of the age of space exploration."

On November 29, KCNA proclaimed similarly that outer space was the "common wealth of humankind," decrying alleged U.S. efforts to "monopolize" space, and noting the large number of "space modules" that had been "launched by carrier rockets into their orbits to go around the earth" by other countries during the previous year.  KCNA denounced the United States and its allies for "abusing the U.N. Security Council" in trying to prevent "the DPRK's peaceful satellite launch," and declared that "[n]o one can check the trend of the times toward the exploration of space for prosperity common to humankind and peaceful purposes."

Even without relying upon whatever classified information about DPRK missile preparations U.S. officials also had, therefore, publicly available information makes it clear that a possible DPRK "satellite" launch from Dongchang-ri was clearly at issue going into the "Leap Day" talks.  The odd and disturbing thing, however, is that while the North Korean position seems to have remained quite consistent – namely, that a moratorium on "missile launches" does not preclude "satellite launches" – there the signals to North Korea from the Obama Administration seem to have been troublingly mixed.

Here a bit of history is in order.  In the past, the United States and its allies appear to have been careful to use phrasing consistent with their view that the DPRK's missile moratorium obligations extend to all varieties of launch, irrespective of whether the payload is a test warhead or a "satellite" intended for earth orbit.  And indeed the very instruments that created that DPRK obligation seem to have been written to preclude ambiguity:

 ?In U.N. Security Council Resolution (UNSCR) 1695 (July 15, 2006), for instance, North Korea was directed to cease not only "missile launches" themselves but "all activities related to its ballistic missile programme."  The resolution expressed "grave concern," in fact, at "the potential of such systems to be used as a means to deliver nuclear, chemical or biological payloads," and explicitly described the DPRK's claimed 1998 satellite launch attempt as involving the lofting skyward of "an object propelled by a missile."  There seems to have been little ambiguity here, in other words, about the interchangeability of "satellite launch" and "missile" technology, and about the fact that both were covered.

 ?Later that same year, while some phrasing in Resolution 1718 (October 14, 2006) demanded merely "that the DPRK not conduct any further … launch of a ballistic missile," that resolution also called for a suspension of "all activities related to [the DPRK's] ballistic missile programme." (It also referred repeatedly to the need to stop that country's "ballistic missile-related" work.)

 ?Most clearly of all, Resolution 1874 (June 12, 2009) – a resolution drafted and pushed through the Security Council by the Obama Administration itself, not long after North Korea's "satellite" launch attempt in April 2009 – referred not just to launches but to DPRK "missile activities" and "ballistic missile-related" activities.  Significantly, in its operative paragraphs, UNSCR 1874 directed the DPRK to "suspend all activities related to its ballistic missile programme," and demanded "that the DPRK not conduct … any launch using ballistic missile technology" (emphasis added).

As Resolution 1874 demonstrates, the Obama Administration clearly does know how to articulate a missile-technology test ban that precludes "satellite" and "missile" launches alike.  Moreover, as evidenced by North Korean complaints about American "abuse" of the Security Council in passing these very resolutions, Pyongyang apparently agrees that UNSCR 1874-type phrasing about "any launch using ballistic missile technology" covers both types of launch.

And that's the rub, for it appears that the Obama Administration did not insist upon replicating UNSCR 1874-type phrasings in its much-vaunted Leap Day "agreement."  As noted, the respective statements issued by U.S. and DPRK officials on February 29 actually agree on the phrasing that was at issue – and they both failed to use UNSCR 1874-type language that would clearly cover satellite launches even by the DPRK's twisted interpretation.  As recently as 2009, the United States had retained the wits to prohibit "any launch using ballistic missile technology," but by 2011 Washington was content to talk only about "long-range missile launches."

I find it hard to imagine that the Obama Administration would have actually agreed – especially in this election year, though our president might perhaps, as he himself has elsewhere suggested, prove more "flexible" thereafter – to permit the DPRK to conduct another test of the ballistic missile technology with which it clearly intends to threaten Americans with nuclear catastrophe.  U.S. officials have claimed that they repeatedly told the North Koreans that any launch would be a problem, also making clear that Washington interpreted the phrasing at issue in the February talks to bar satellite launches too, and I have no reason to doubt this.

There is no evidence, however, that Pyongyang ever actually agreed with this U.S. position, and a good deal of evidence that they didn't.  If so, the Leap Day "agreement" may actually have been nothing of the sort: the parties perhaps agreed on the same words, but they seem to have meant entirely different things.  Worse still, in all this after-the-fact squabbling about what was agreed, the North Koreans are able to say that the Americans came around to their position by dropping our previous insistence upon language that would clearly cover satellite launches.  Perhaps we didn't intend this, but it doesn't look good, to say the least.

In such circumstances, rank incompetence is nearly as bad as bad faith, and it is hard not to be appalled by the terminological flaccidity the Obama Administration seems to have accepted in the Leap Day "agreement."  After taking the time to make sure that UNSCR 1874 inarguably covered all launches in 2009, why on earth would U.S. officials have accepted North Korea's purportedly satellite-exculpatory phrasing in 2012?

(Nor was this merely a single casual omission, for the Obama Administration seems to have been sending mixed signals to the DPRK on this missile issue since even before the most recent round of diplomatic talks began in the summer of 2011.  When Kim Jong-il was reported to have agreed to consider a moratorium on nuclear and missile testing in August 2011, Obama officials at the State Department responded that "if in fact they are now willing to refrain from nuclear test and missile launches, this would be welcome."  The commendably careful phrasings of UNSCR 1874 seem already to have been forgotten.)

As far as one can tell from public pronouncements, therefore – though this may of course be an incomplete picture – the diplomatic bright lights at Team Obama seem to have forgotten to qualify their phrasing along UNSCR 1874 lines throughout the 2011-12 negotiations.  Small wonder, then, that the result has turned out to be such a mess.

The North Koreans, who surely read all U.S. public statements with enormous care, may even have taken U.S. declarations as evidence that Obama had caved in to their longstanding "satellite launch" demands.  As a DPRK statement put it on March 27, Pyongyang has

"consistently maintained that a moratorium on long-range missile launch does not include a satellite launch for peaceful purposes.  As a result, the DPRK-U.S. agreement dated Feb[ruary] 29 specified a moratorium on long-range missile launch, not 'launch of long-range missile including satellite launch' or 'launch with the use of ballistic missile technology.'"

In hindsight, therefore, it is not clear that there really was a Leap Day "agreement" at all.  Each side may have made its interpretation quite clear to the other – at least one presumes they did, and at any rate they claim to have done so – but it's hard to escape the conclusion that when it came to the critical element of missile technology testing, there was no meeting of minds in Beijing at all.  (Do you remember when Ambassador Christopher Hill returned from Beijing in 2008, declaring success in the Six-Party Talks after having obtained no more from the DPRK on its uranium enrichment and proliferation activities than merely Pyongyang's gracious willingness to "acknowledge" that we had "concerns" about such possibilities?  Well, here we go again ….)  If the parties were indeed still so far apart when the diplomats went home after February 29, no deal had actually been reached.  In that event, shame on the Obama Administration for its muddleheaded diplomacy, and for trying to sell the rest of the world on the notion that Leap Day represented even the "important, if limited" accord Washington afterwards claimed.

Don't get me wrong.  The North Korean "satellite launch," if it occurs, will be a violation of international law and a grossly provocative demonstration of ballistic missile technology clearly designed to threaten the United States and our allies, and Pyongyang richly deserves all the additional pressures it will face if the missile indeed goes up.  We Americans deserve better from our diplomats and political leaders, however, than careless and inattentive wordsmithing that helps a rogue regime justify its provocations, and may even have encouraged Pyongyang in its determination to press ahead.