U.N. Security Council Resolution 1874 (Updated with Analysis)

For better or for worse, they passed it.

As with UNSCR 1695 and 1718 before it, this will be as effective as the implementation.  Much has been said about how China undermined both of those resolutions, and that is true, but too little has been said about how much the U.S. State Department also did to undermine them for the sake of a failure called Agreed Framework II.

The good news is that this time, there are some early and encouraging signs that President Obama will make this resolution a part of a broader strategy of targeting North Korea’s finances.  The bad news is that when North Korea offers to sign Agreed Framework III, he’ll be tempted to lift those sanctions without demanding and getting a firm timetable for North Korea to change its ways.

Full text of the resolution, with more comments and reactions, below the fold:

The Security Council,

Recalling its previous relevant resolutions, including resolution 825 (1993), resolution 1540 (2004), resolution 1695 (2006), and, in particular, resolution 1718 (2006), as well as the statements of its President of 6 October 2006 (S/PRST/2006/41) and 13 April 2009 (S/PRST/2009/7),

Reaffirming that proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security,

Expressing the gravest concern at the nuclear test conducted by the Democratic People’s Republic of Korea (“the DPRK”) on 25 May 2009 (local time) in violation of resolution 1718 (2006), and at the challenge such a test constitutes to the Treaty on Non-Proliferation of Nuclear Weapons (“the NPT”) and to international efforts aimed at strengthening the global regime of non-proliferation of nuclear weapons towards the 2010 NPT Review Conference, and the danger it poses to peace and stability in the region and beyond,

Stressing its collective support for the NPT and commitment to strengthen the Treaty in all its aspects, and global efforts towards nuclear non-proliferation and nuclear disarmament, and recalling that the DPRK cannot have the status of a nuclear-weapon state in accordance with the NPT in any case,

Deploring the DPRK’s announcement of withdrawal from the NPT and its pursuit of nuclear weapons,

Underlining once again the importance that the DPRK respond to other security and humanitarian concerns of the international community,

Underlining also that measures imposed by this resolution are not intended to have adverse humanitarian consequences for the civilian population of the DPRK,

Expressing its gravest concern that the nuclear test and missile activities carried out by the DPRK have further generated increased tension in the region and beyond, and determining that there continues to exist a clear threat to international peace and security,

Reaffirming the importance that all Member States uphold the purposes and principles of the Charter of the United Nations,

Acting under Chapter VII of the Charter of the United Nations, and taking measures under its Article 41,

1. Condemns in the strongest terms the nuclear test conducted by the DPRK on 25 May 2009 (local time) in violation and flagrant disregard of its relevant resolutions, in particular resolutions 1695 (2006) and 1718 (2006), and the statement of its President of 13 April 2009 (S/PRST/2009/7);

2. Demands that the DPRK not conduct any further nuclear test or any launch using ballistic missile technology;

3. Decides that the DPRK shall suspend all activities related to its ballistic missile programme and in this context re-establish its pre-existing commitments to a moratorium on missile launches;

4. Demands that the DPRK immediately comply fully with its obligations under relevant Security Council resolutions, in particular resolution 1718 (2006);

5. Demands that the DPRK immediately retract its announcement of withdrawal from the NPT;

6. Demands further that the DPRK return at an early date to the NPT and International Atomic Energy Agency (IAEA) safeguards, bearing in mind the rights and obligations of States Parties to the NPT, and underlines the need for all States Parties to the NPT to continue to comply with their Treaty obligations;

7. Calls upon all Member States to implement their obligations pursuant to resolution 1718 (2006), including with respect to designations made by the Committee established pursuant to resolution 1718 (2006) (“the Committee”) pursuant to the statement of its President of 13 April 2009 (S/PRST/2009/7);

8. Decides that the DPRK shall abandon all nuclear weapons and existing nuclear programs in a complete, verifiable and irreversible manner and immediately cease all related activities, shall act strictly in accordance with the obligations applicable to parties under the NPT and the terms and conditions of the IAEA Safeguards Agreement (IAEA INFCIRC/403) and shall provide the IAEA transparency measures extending beyond these requirements, including such access to individuals, documentation, equipment and facilities as may be required and deemed necessary by the IAEA;

9. Decides that the measures in paragraph 8(b) of resolution 1718 (2006) shall also apply to all arms and related materiel, as well as to financial transactions, technical training, advice, services or assistance related to the provision, manufacture, maintenance or use of such arms or materiel;

10. Decides that the measures in paragraph 8(a) of resolution 1718 (2006) shall also apply to all arms and related materiel, as well as to financial transactions, technical training, advice, services or assistance related to the provision, manufacture, maintenance or use of such arms, except for small arms and light weapons and their related materiel, and calls upon States to exercise vigilance over the direct or indirect supply, sale or transfer to the DPRK of small arms or light weapons, and further decides that States shall notify the Committee at least five days prior to selling, supplying or transferring small arms or light weapons to the DPRK;

11. Calls upon all States to inspect, in accordance with their national authorities and legislation, and consistent with international law, all cargo to and from the DPRK, in their territory, including seaports and airports, if the State concerned has information that provides reasonable grounds to believe the cargo contains items the supply, sale, transfer, or export of which is prohibited by paragraph 8 (a), 8 (b), or 8 (c) of resolution 1718 or by paragraph 9 or 10 of this resolution, for the purpose of ensuring strict implementation of those provisions;

12. Calls upon all Member States to inspect vessels, with the consent of the flag State, on the high seas, if they have information that provides reasonable grounds to believe that the cargo of such vessels contains items the supply, sale, transfer, or export of which is prohibited by paragraph 8 (a), 8 (b), or 8 (c) of resolution 1718 (2006) or by paragraph 9 or 10 of this resolution, for the purpose of ensuring strict implementation of those provisions;

13. Calls upon all States to cooperate with inspections pursuant to paragraphs 11 and 12, and, if the flag State does not consent to inspection on the high seas, decides that the flag State shall direct the vessel to proceed to an appropriate and convenient port for the required inspection by the local authorities pursuant to paragraph 11;

14. Decides to authorize all Member States to, and that all Member States shall, seize and dispose of items the supply, sale, transfer, or export of which is prohibited by paragraph 8 (a), 8 (b), or 8 (c) of resolution 1718 or by paragraph 9 or 10 of this resolution that are identified in inspections pursuant to paragraph 11, 12, or 13 in a manner that is not inconsistent with their obligations under applicable Security Council resolutions, including resolution 1540 (2004), as well as any obligations of parties to the NPT, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction of 29 April 1997, and the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction of 10 April 1972, and decides further that all States shall cooperate in such efforts;

15. Requires any Member State, when it undertakes an inspection pursuant to paragraph 11, 12, or 13, or seizes and disposes of cargo pursuant to paragraph 14, to submit promptly reports containing relevant details to the Committee on the inspection, seizure and disposal;

16. Requires any Member State, when it does not receive the cooperation of a flag State pursuant to paragraph 12 or 13 to submit promptly to the Committee a report containing relevant details;

17. Decides that Member States shall prohibit the provision by their nationals or from their territory of bunkering services, such as provision of fuel or supplies, or other servicing of vessels, to DPRK vessels if they have information that provides reasonable grounds to believe they are carrying items the supply, sale, transfer, or export of which is prohibited by paragraph 8 (a), 8 (b), or 8 (c) of resolution 1718 (2006) or by paragraph 9 or 10 of this resolution, unless provision of such services is necessary for humanitarian purposes or until such time as the cargo has been inspected, and seized and disposed of if necessary, and underlines that this paragraph is not intended to affect legal economic activities;

18. Calls upon Member States, in addition to implementing their obligations pursuant to paragraphs 8 (d) and (e) of resolution 1718 (2006), to prevent the provision of financial services or the transfer to, through, or from their territory, or to or by their nationals or entities organized under their laws (including branches abroad), or persons or financial institutions in their territory, of any financial or other assets or resources that could contribute to the DPRK’s nuclear-related, ballistic missile-related, or other weapons of mass destruction-related programs or activities, including by freezing any financial or other assets or resources on their territories or that hereafter come within their territories, or that are subject to their jurisdiction or that hereafter become subject to their jurisdiction, that are associated with such programs or activities and applying enhanced monitoring to prevent all such transactions in accordance with their national authorities and legislation;

19. Calls upon all Member States and international financial and credit institutions not to enter into new commitments for grants, financial assistance, or concessional loans to the DPRK, except for humanitarian and developmental purposes directly addressing the needs of the civilian population, or the promotion of denuclearization, and also calls upon States to exercise enhanced vigilance with a view to reducing current commitments;

20. Calls upon all Member States not to provide public financial support for trade with the DPRK (including the granting of export credits, guarantees or insurance to their nationals or entities involved in such trade) where such financial support could contribute to the DPRK’s nuclear-related or ballistic missile-related or other WMD-related programs or activities;

21. Emphasizes that all Member States should comply with the provisions of paragraphs 8(a)(iii) and 8(d) of resolution 1718 (2006) without prejudice to the activities of the diplomatic missions in the DPRK pursuant to the Vienna Convention on Diplomatic Relations;

22. Calls upon all Member States to report to the Security Council within forty-five days of the adoption of this resolution and thereafter upon request by the Committee on concrete measures they have taken in order to implement effectively the provisions of paragraph 8 of resolution 1718 (2006) as well as paragraphs 9 and 10 of this resolution, as well as financial measures set out in paragraphs 18, 19 and 20 of this resolution;

23. Decides that the measures set out at paragraphs 8 (a), 8 (b) and 8 (c) of resolution 1718 (2006) shall also apply to the items listed in INFCIRC/254/Rev.9/Part 1a and INFCIRC/254/Rev.7/Part 2a;

24. Decides to adjust the measures imposed by paragraph 8 of resolution 1718 (2006) and this resolution, including through the designation of entities, goods, and individuals, and directs the Committee to undertake its tasks to this effect and to report to the Security Council within thirty days of adoption of this resolution, and further decides that, if the Committee has not acted, then the Security Council will complete action to adjust the measures within seven days of receiving that report;

25. Decides that the Committee shall intensify its efforts to promote the full implementation of resolution 1718 (2006), the statement of its President of 13 April 2009 (S/PRST/2009/7) and this resolution, through a work programme covering compliance, investigations, outreach, dialogue, assistance and cooperation, to be submitted to the Council by 15 July 2009, and that it shall also receive and consider reports from Member States pursuant to paragraphs 10, 15, 16 and 22 of this resolution;

26. Requests the Secretary-General to create for an initial period of one year, in consultation with the Committee, a group of up to seven experts (“Panel of Experts”), acting under the direction of the Committee to carry out the following tasks: (a) assist the Committee in carrying out its mandate as specified in resolution 1718 (2006) and the functions specified in paragraph 25 of this resolution; (b)  gather, examine and analyze information from States, relevant United Nations bodies and other interested parties regarding the implementation of the measures imposed in resolution 1718 (2006) and in this resolution, in particular incidents of non-compliance; (c) make recommendations on actions the Council, or the Committee or Member States, may consider to improve implementation of the measures imposed in resolution 1718 (2006) and in this resolution; and (d) provide an interim report on its work to the Council no later than 90 days after adoption of this resolution, and a final report to the Council no later than 30 days prior to termination of its mandate with its findings and recommendations;

27. Urges all States, relevant United Nations bodies and other interested parties, to cooperate fully with the Committee and the Panel of Experts, in particular by supplying any information at their disposal on the implementation of the measures imposed by resolution 1718 (2006) and this resolution;

28. Calls upon all Member States to exercise vigilance and prevent specialized teaching or training of DPRK nationals within their territories or by their nationals, of disciplines which could contribute to the DPRK’s proliferation sensitive nuclear activities and the development of nuclear weapon delivery systems;

29. Calls upon the DPRK to join the Comprehensive Nuclear-Test-Ban Treaty at the earliest date;

30. Supports peaceful dialogue, calls upon the DPRK to return immediately to the Six Party Talks without precondition, and urges all the participants to intensify their efforts on the full and expeditious implementation of the Joint Statement issued on 19 September 2005 and the joint documents of 13 February 2007 and 3 October 2007, by China, the DPRK, Japan, the Republic of Korea, the Russian Federation and the United States, with a view to achieving the verifiable denuclearization of the Korean Peninsula and to maintain peace and stability on the Korean Peninsula and in north-east Asia;

31. Expresses its commitment to a peaceful, diplomatic and political solution to the situation and welcomes efforts by Council members as well as other Member States to facilitate a peaceful and comprehensive solution through dialogue and to refrain from any actions that might aggravate tensions;

32. Affirms that it shall keep the DPRK’s actions under continuous review and that it shall be prepared to review the appropriateness of the measures contained in paragraph 8 of resolution 1718 (2006) and relevant paragraphs of this resolution, including the strengthening, modification, suspension or lifting of the measures, as may be needed at that time in light of the DPRK’s compliance with relevant provisions of resolution 1718 (2006) and this resolution;

33. Underlines that further decisions will be required, should additional measures be necessary;

34. Decides to remain actively seized of the matter.

And now for the State Department spin:

Explanation of Vote by Ambassador Rosemary DiCarlo, U.S. Alternate Representative for Special Political Affairs on Security Council Resolution 1874 on North Korea, June 12, 2009

Thank you, Mr. President.

The United States welcomes the unanimous adoption of Resolution 1874. This resolution provides a strong and united international response to North Korea’s test of a nuclear device.

The message of this resolution is clear: North Korea’s behavior is unacceptable to the international community, and the international community is determined to respond. North Korea should return without conditions to a process of peaceful dialogue. It should honor its previous commitments to denuclearize the Korean Peninsula. It should shun provocation and proliferation. But for now, its choices have led it to face markedly stronger sanctions from the international community.

This resolution condemns North Korea’s nuclear test in the strongest terms. It strengthens and enhances sanctions on North Korea in five critically important areas: by imposing a total embargo on arms exports from North Korea and significantly expanding the ban on arms imports; by creating a wholly new framework for states to cooperate in the inspection of ships and aircraft suspected to be carrying weapons of mass destruction or other banned goods; by calling on states and international financial institutions to disrupt the flow of funds that could support North Korea’s missile, nuclear, or proliferation activities; by committing to designate for targeted sanctions additional goods, entities, and individuals involved in North Korea’s illicit behavior; and, finally, by strengthening the mechanisms to monitor and tighten the implementation of this toughened new sanctions regime.    These measures are innovative, they are robust, and they are unprecedented.

Mr. President, North Korea chose a path of provocation. As President Obama has said, actions must have consequences. Resolution 1874 has seen to it that they do. This resolution will give us new tools to impair North Korea’s ability to proliferate and threaten international stability. We are particularly grateful to our colleagues on the Council, who have come together to help adopt this resolution; we thank them for their tremendous hard work in this process, for their good effort, and for their goodwill.

Above all, Mr. President, Resolution 1874 reflects the resolve of the international community and the Security Council, which has spoken with one voice. The United States stands firmly behind these provisions and is committing to ensuring its implementation.

Thank you, Mr. President.

Update 13 Jun 2009:  I’ve finally had a chance to plod through this thing, and I concede that on reading the full text, I believe more than ever that all will depend on how each individual state chooses to reinterpret this.

Financial Sanctions:

  • The Good:   The resolution calls on member states to block or freeze “any financial or other assets or resources that could contribute to the DPRK’s nuclear-related, ballistic missile-related, or other weapons of mass destruction-related programs or activities,” and also calls upon states not to finance trade if doing so “could” contribute to those programs.  By doing so, the resolution claws back every tangible concession Chris Hill gave away.  If implemented as clearly intended, Paragraphs 18-21 impose an effective ban on transferring funds to North Korea, absent North Korea agreeing to a transparent accounting of how it uses the funds, or by signing Agreed Framework III, inducing us to relax the sanctions, and starting this whole farce all over again.
  • The resolution reaffirms the financial transparency requirement of UNSCR 1718, para. 8(d), which places the burden on NK’s clients and bankers to “ensure” that their funds don’t assist NK’s WMD development.  It’s difficult to imagine how new investors in Kaesong, or in Chinese mining operations in North Korea, could do so without running afoul of this provision, and the spirit of the resolution arguably requires South Korea to terminate its Kaesong and Kumgang financing.
  • The Bad:   The use of the words “could contribute” will invite much creative and convenient reinterpretation.  Contrast this to the much better language of Paragraph 8(d) of UNSCR 1718 said that states should “ensure” that funds sent to North Korea not contribute to its WMD development.  That language placed a clear, affirmative accountability obligation on other states that this resolution does not (fortunately, 1874 also reaffirms that nations “should” comply with Para. 8(d) of UNSCR 1718).
  • The resolution appropriately allows exceptions for humanitarian assistance (less so, for “development” assistance), but fails to specify the form that humanitarian and development assistance should take, or to insist on strict monitoring of how that aid is used, despite the North Korean regime’s well established history of diverting both humanitarian and development aid.  China, and perhaps a future South Korean government, will be able to exploit this by handing over bundles of cash and calling the cash “humanitarian” aid.
  • The resolution’s weak call for “enhanced vigilance” by itself will have little effect on loan or financial obligations previously entered into by bankers and investors, such as the Orascom deal with the NK regime.
  • By failing to specifically repeal the exception in Paragraph 9(c) of UNSCR 1718, it arguably allows North Korea to collect any funds not already paid under the Lloyds of London judgment, although the breadth of Paragraphs 18-21 could be read as repealing that exception in cases where North Korea fails to account for how the funds will be used.
  • The resolution only bans funds that “could” support North Korea’s WMD development, but it doesn’t apply to North Korea’s other banned weapons related trade, its criminal activities (ie., counterfeiting and money laundering), or its system of oppression (such as the security services that run its concentration camps or sell its products, such as gold, used to circumvent sanctions in the past).

Interdiction of Shipments at Sea:

  • The Good:   The resolution essentially places a U.N. stamp of approval on John Bolton’s Proliferation Security Initiative as it applies to North Korea.  For nations that are willing to cooperate, this will allow them to do that.
  • The Bad:   For nations that choose not to cooperate, the resolution’s non-mandatory language and failure to invoke Chapter VII will allow them to do nothing.
  • Because the right to board and search requires the searching state to have “reasonable grounds to believe” that the ship is carrying banned cargo, the provision could be read as requiring the searching state to articulate those grounds.  Any lawyer who has dealt with “reasonable suspicion” knows how flexible these standards can be.  Worse, requiring searching states to articulate their “reasonable grounds” may also require them to jeopardize highly classified intelligence sources and methods.
  • Critically, the resolution requires the consent of the flag state, despite North Korea’s notoriety for reflagging and renaming ships at sea to avoid tracking and detection.  Since most states reserve limited rights to board vessels on the high seas — North Korea itself being a famous example — this provision arguably gives North Korean WMD shipments more legal protection than, say, a Panamanian-flagged ship believed to be carrying drugs.
  • And what if the flag state is, say, Iran or Syria, and it refuses?  The resolution “calls on” the flag state to direct the ship to an “appropriate and convenient port” for inspection.  The only consequence of a flag state refusing to do so is to be reported to the Security Council.  The resolution fails to authorize the use of force to intercept ships or aircraft that disobey orders to stop or land and be boarded. 

Disposing of Seized Cargo:

  • The Good:   Although previous resolutions had implied the right to seize banned cargo, they never gave seizing states the right to destroy or dispose of the cargo.  UNSCR 1874 does.
  • The Bad:   The resolution doesn’t give seizing states the right to search for or seize drugs, counterfeit currency, or counterfeit cigarettes or pharmaceuticals.  Other UN resolutions and domestic laws may permit the appropriate disposal of such items, but this resolution certainly gives no authority to do so.  The resolution also fails to allow seizing states to dispose of the ships carrying those banned cargoes.

Port Inspections of North Korean Ships:

  • The Good:   Allows states to inspect ships or aircraft in their ports or airports if they have “reasonable grounds to believe” that they are carrying banned weapons, components, technology, or luxury goods.
  • The Bad:   As above, “reasonable grounds to believe” is an amorphous standard that may require states to share intelligence or declare their “reasonable grounds,” thus risking their most carefully guarded intelligence sources and methods.

Ban on Weapons Trafficking:

  • The Good:   The resolution expands the ban on selling most weapons to, or buying most weapons from, North Korea, or financing any such transactions.  Not all of North Korea’s profitable arms sales are WMD’s or large weapons systems; some are items like the advanced anti-tank missiles North Korea recently agreed to supply to Syria, possibly for the use of Hezbollah or Iran.
  • The Bad:   The resolution contains a badly written “small arms” and “light weapons” exception that will be a temptation to creative reinterpretation.  Paragraph 10 doesn’t make it clear whether North Korea can continue selling small arms; an intentional decision to that effect would be inconceivable.  It’s anyone’s guess why the resolution allows North Korea to purchase small arms; after all, North Korea is already a major producer and exporter.  The exception requires sellers to notify the Security Council five days before shipping small arms to North Korea, an embarrassment that will prove prohibitive to some.
  • Exceptions referring to the Vienna Convention will still allow North Korean diplomats, who are reportedly under instructions to finance their own consular operations, to continue to abuse their diplmatic status.  Given North Korean diplomats’ extensive history for smuggling dope and other dodgy items, it’s probably that they would also carry cash to finance or profit from banned activities, of WMD components, or WMD technology.
  • The Not-So-Bad:   If all diplomatic means fail, this exception will prove useful to nations that decide to supply any armed resistance forces that may arise inside North Korea.

North Korea’s Crimes Against Humanity:

  • Better Than Nothing:   “Underlining once again the importance that the DPRK respond to other security and humanitarian concerns of the international community ….”

Update 2, 13 Jun 09:   Some related links:

JAPAN WILL IMPOSE unilateral trade sanctions, possibly to include a total trade ban, as early as next Tuesday.

THE NEW YORK TIMES, striving mightily to make the case that sanctions won’t work, quotes as a source one of the men who did the most to undermine them last time:

“The sanctions against B.D.A. hurt, but in the end did they work? No, the North responded by just spitting in America’s face with the nuclear test,” said Jeong Se-hyun, who as unification minister was one of the South’s top negotiators with North Korea during the administrations of former presidents Kim Dae-jung and Roh Moo-hyun, who were often at odds with Washington over pressure on North Korea.

But without Jeong and his ilk in power in Seoul, sanctions are far more likely to work.

THE L.A. TIMES CALLED MARCUS NOLAND and got this quote:

“There is not a shred of evidence that China ever implemented the sanctions,” Noland said in a telephone interview. “China has essentially acted as North Korea’s enabler, watering down sanctions within the U.N. system, giving lip service in New York and then not implementing.”

ANDREI LANKOV, who actually believes that China doesn’t want North Korea to have nukes also agrees that China won’t push North Korea harder than it absolutely has to.

THE AP TALKS ABOUT BUREAU 39, North Korea’s illicit financing, and the new focus on both.  More here.

IS OBAMA REALLY READY to intercept North Korean ships at sea?

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