In yesterday’s post about Kaesong, I argued that by any reasonable definition, its North Korean workers are forced laborers, and that the best evidence we have suggests that the vast majority of their “wages” are probably stolen by the Pyongyang regime, through a combination of direct taxation and confiscatory exchange rates. My argument relied heavily on a recent study by the economist Marcus Noland, who has done an excellent job researching questions that most journalists have overlooked, addressing the ethical implications of the answers, and arguing for a voluntary code of ethics that could go a long way toward address those implications.
Noland has done a good enough job discussing the ethics of Kaesong’s labor arrangements that I see no need to add to it. I do, however, see some important legal implications that no one else has addressed in depth.
The first set of legal issues arises from long-standing suspicions that Kaesong manufacturers are sneaking components or finished goods from Kaesong into U.S. markets, a benefit that the South Korean government sought when it negotiated its Free Trade Agreement with the United States, and which it raised again as recently as last October. Because the two sides couldn’t agree on the inclusion of products from Kaesong, they agreed instead to Annex 22-B of the FTA, on “Outward Processing Zones.” Annex 22-B, however, is nothing more than an agreement to keep talking. It’s fair to say that Congress would not have ratified the FTA without the understanding that Kaesong products were excluded from it.
That means that despite the FTA’s ratification by the Senate, by its own terms, it lacks supremacy over a statute that specifically excludes goods that are “mined, produced, or manufactured wholly or in part in any foreign country by convict labor or/and forced labor.”
You’re entitled to question the administration’s determination to enforce this law, but as it turns out, an obscure Customs regulation at 19 C.F.R. 12.42 allows private petitioners to oppose the landing of goods made with forced labor in U.S. ports. The U.S. cotton industry has been especially effective at using this provision to tie up Uzbek cotton in customs warehouses, and to raise political pressure against the import of cotton from Uzbekistan. If human rights organizations became aware of specific Kaesong-made goods being imported into the United States, Noland’s study now gives them a strong evidentiary basis to tie those products up in customs warehouses, too. This, by itself, might be enough to make the export of those products to the United States unprofitable.
Finally, depending on the amount of Kaesong labor embodied in a product, its import to the United States could violate complex country-of-origin labeling rules, or could be receiving a lower-tariff status under the U.S.-Korea Free Trade Agreement, from which Kaesong products were ostensibly excluded (after much contentious negotiation).
Nor does the administration seem inclined to defend Kaesong imports. In 2011, President Obama signed Executive Order 13,570, which banned North Korean imports from the U.S. market. Any violation of that executive order carries the severe penalties of Section 206 the International Emergency Economic Powers Act – 20 years in prison, a fine of $1,000,000, and a civil penalty of $250,000. Despite a recent spike in suspicious travel by U.S., South Korean, North Korean, and Chinese diplomats, the North Koreans are a no-show, tensions with North Korea are back on the rise, and the Obama Administration is hinting about strengthening sanctions, not weakening them.
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These still aren’t the questions that cause the greatest discomfort at the South Korean Unification Ministry. That question is this: If the money paid into Kaesong isn’t going to the workers, just where is that money going? As Treasury Undersecretary David Cohen recently said, “Precisely what North Koreans do with earnings from Kaesong, I think, is something that we are concerned about.”
Cohen is concerned because his department enforces the regulations and executive orders that implement U.N. Security Council sanctions against the North’s WMD programs. Those resolutions limit unrestricted cash flows to North Korea, in order to deny its WMD programs of funding. The latest of those resolutions, U.N. Security Council Resolution 2094, was passed in 2013 and says this:
“11. Decides that Member States shall, in addition to implementing their obligations pursuant to paragraphs 8 (d) and (e) of resolution 1718 (2006), prevent the provision of … any financial or other assets or resources, including bulk cash, that could contribute to the DPRK’s nuclear or ballistic missile programmes, or other activities prohibited by resolutions 1718 (2006), 1874 (2009), 2087 (2013), or this resolution, or to the evasion of measures imposed by resolutions 1718 (2006), 1874 (2009), 2087 (2013), or this resolution ….;
“14. Expresses concern that transfers to the DPRK of bulk cash may be used to evade the measures imposed in resolutions 1718 (2006), 1874 (2009), 2087 (2013), and this resolution, and clarifies that all States shall apply the measures set forth in paragraph 11 of this resolution to the transfers of cash, including through cash couriers, transiting to and from the DPRK so as to ensure such transfers of bulk cash do not contribute to the DPRK’s nuclear or ballistic missile programmes, or other activities prohibited by resolutions 1718 (2006), 1874 (2009), 2087 (2013), or this resolution, or to the evasion of measures imposed by resolutions 1718 (2006), 1874 (2009), 2087 (2013), or this resolution;
“15. Decides that all Member States shall not 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 or ballistic missile programmes, or other activities prohibited by resolutions 1718 (2006), 1874 (2009), 2087 (2013), or this resolution, or to the evasion of measures imposed by resolutions 1718 (2006), 1874 (2009), 2087 (2013), or this resolution;
The use of the words “could contribute” is burden-shifting language, like the language in Paragraph 8(d) of Resolution 1718 (2006) that required member states to “ensure that any funds, financial assets or economic resources are prevented from being made available” to persons and entities involved in North Korea’s WMD programs. You can’t “prevent” unless you know where the money is going in the first place, and if you aren’t asking, you aren’t preventing. The Security Council’s clear intent was to force member states and companies under the jurisdiction of their laws to move beyond feigning ignorance and make reasonable inquiries. The Unification Ministry’s Sergeant Schultz act doesn’t work anymore.
Past precedent gives us reason to share Undersecretary Cohen’s concern. As early as October 2000, Noland wrote here that North Korea’s revenues from the Kumgang Tourist project, which he estimated at $450 million per year, were being deposited into a Macau bank account controlled by the notorious Bureau 39, for “regime maintenance,” despite the lack of “real systemic implications for the organization of the North Korean economy or society.” For all we know, North Korea could be using its Kaesong revenues for even more sinister purposes.
There is also the broader problem that a steady stream of cash dulls the economic pressure that is the outside world’s principal lever for disarming North Korea.
“The fact is, South Korea and China are providing North Korea with a considerable amount of unconditioned economic support,” said Marcus Noland, a Korea expert at the Institute for International Economics in Washington. “As long as that support is forthcoming, North Korea will not feel as much of a need to address the nuclear issue, and attempts to isolate the North economically will have less and less credibility and effect.” [WaPo 2005]
The Congressional Research Service also discusses the tension – some would say, schizophrenia — attendant in alternating between economic subsidy and economic pressure. No wonder South Korea has clung so dearly to the pretense that Kaesong wages really are paid to the workers. Unfortunately for the Unification Ministry, the evidence contradicts this cherished falsehood — it’s impossible to deny that Kaesong is a subsidy to Pyongyang. The U.N. Security Council, however, has chosen economic pressure, most recently with the active support of South Korea’s Ambassador to the United Nations (at the time UNSCR 2094 passed by a vote of 15-0, South Korea was a non-permanent member of the Security Council).
But what does South Korea know about what Pyongyang is doing with its money? I posed the question to the Unification Ministry in an e-mail and on their Facebook page. Here, in relevant part, is what I asked them:
Recently, I read a report by the economist Marcus Noland indicating that most South Korean investors at Kaesong don’t actually know how much of their nominal wages the North Korean workers there actually receive, and that the North Korean government likely keeps most of the money. First, can the Ministry comment on that? If you deny this assertion, can you explain the basis for your denial?
Second, this assertion also raises the question of where the money is going. A series of U.N. Security Council resolutions requires Member States to ensure that their money isn’t being used to finance North Korea’s WMD programs. A senior U.S. Treasury official and a report by the Congressional Research Service recently raised concerns about how North Korea uses its revenue from Kaesong.
Can you describe what if any financial checks, precautions, and transparency are in place to ensure that North Korea isn’t using Kaesong earnings for illicit purposes, to facilitate human rights abuses, or to buy weapons to threaten people, including U.S. troops, in South Korea?
Also, I’m wondering if you’ve sought an advisory opinion about Kaesong from the U.N. 1718 Committee’s Panel of Experts.
So far, the Unification Ministry hasn’t responded. I’ll update this post if they do, but I’d be astonished if they had extracted enough financial transparency measures from the North to answer the question in good faith.
Incidentally, one of the interesting points I gleaned from the last U.N. Panel of Experts report is that the POE gives advisory opinions on transactions with North Korea. If the Unification Ministry isn’t asking for one, it may be because it doesn’t want to know the answer.
Largely because of South Korean domestic politics and government subsidies, Kaesong has outlasted a few of my predictions of its demise. It will face more challenges this year and next, as we appear to be entering a new cycle of North Korean provocations, and as South Korea’s present leader appears unusually disinclined to tolerate them. The fact that Kaesong’s workers are functionally slaves deserves to be one of those challenges. So does the likelihood that the entire enterprise consequently violates a series of Security Council resolutions designed to protect South Korea’s own security.