Agreement Between the Government of the Republic of Korea and the Government of Japan on the Protection of Classified Information

We lead with the title, because too much has been made of this agreement, both in the US press and in Korea. However as is so often the case in international politics, perception has independent significance. First, there are the signals sent with respect to US alliance relations in the region vis-à-vis China and North Korea. Is this agreement a step on the road to the trilateralization of alliance ties in North East Asia? We are dubious. But South Korean media reports mention that such an agreement was sought by the U.S. Even such intelligence sharing raises a host of strategic issues for South Korea, and in particular the question of whether deeper cooperation with Japan—and even the US—would constitute a constraint on its economic ties with China.

A particular issue has to do with missile defense. Some have argued that the agreement in fact has more operational significance than it appears because it recognizes equipment and technology as among the classified information that can be shared. The agreement would therefore make it easier for the U.S., Japan and Korea to cooperate on missile defenses. Again, we are dubious; this argument has the tail wagging the dog. If the three countries develop closer missile defense cooperation it will not be as a result of an information-sharing agreement but of shared perceptions of the challenges posed by China and North Korea.

More interesting in our view are the bumps to signing this highly procedural agreement in South Korea. Even controlling for the silliness of the electoral season, the saga shows the ongoing political constraints on Korea-Japan relations.

For the record, the full text of the agreement, recently released by the Korean Ministry of Foreign Affairs and Trade, is reproduced below; see if you can stay awake through scanning it.  What the agreement does is outline a set of protocols for sharing classified intelligence. The core of the agreement consists of the standardization of security classifications and a set of procedural agreements about how shared material will be transmitted, translated, stored, and disseminated within the bureaucracy and military by both parties.

There is no requirement to share information, there is no discussion of what information would be shared, and the agreement has no implications whatsoever for military cooperation around any intelligence that is shared. The idea that this is a precursor to closer military cooperation is a pretty substantial stretch as far as we can tell. Even smart reporters whom we regard highly—like Choe Sang-hun (or his editors at the New York Times) —were hyperventilating with leads like “South Korea to Sign Military Pact with Japan.”

In fact, South Korea has apparently signed 24 of such bilateral agreements, including an arrangement with none other than Russia, and President Lee Myung Bak seem to have a stated preference for having such an agreement with China as well.

The drama began when the leadership of President Lee’s Saenuri Party—presumably with Park Geun Hye’s approval--pressured MOFAT an hour before the signing ceremony to postpone the agreement. The party pointed out there were issues of due process as well as “public concern” about the agreement.  The “public concern” had to do with the opportunity the agreement provided to the opposition United Democratic Party (UDP) and particularly the troubled United Progressive Party (UPP) to seize a hot electoral issue and tarnish Park Geun Hye and the Saenuri Party more generally for its “pro-Japanese” behavior; Hankyoreh provides an unfortunate example with a headline noting “MB Government Getting Uncomfortably Cozy with Japan.”

The UPP has been under fire from the conservative media and National Assembly members both for its “pro-North Korea” positions and for a vote rigging scandal under which some UPP leaders illicitly gained proportional representation or national list seats in the April election. They are having a particular field day.

Institutional prerogatives are also at play. Although the Blue House and MOFAT were engaged in a low-level blame game through proxies—who was responsible for the PR disaster?—more serious issues concerned the executive’s relationship to the National Assembly. The administration holds that it has the prerogative to sign such an agreement without National Assembly approval (based on an authoritative interpretation by the Ministry of Government Legislation, a sub-cabinet level government agency that addresses legislative issues).

It now appears that a compromise has been reached. Newsfeed (in Korean) suggests that the cabinet is going to push through the signing after all. However, the MOFAT minister will attend the foreign affairs committee at the National Assembly on July 9^th to provide a report on the agreement first. Whether it will in fact survive a National Assembly grilling is yet to be seen.

As always, Evan Ramstad at the WSJ has a solid overview.

AGREEMENT BETWEEN

THE GOVERNMENT OF THE REPUBLIC OF KOREA

AND

THE GOVERNMENT OF JAPAN

ON THE PROTECTION OF CLASSIFIED INFORMATION

The Government of the Republic of Korea and the Government of Japan (hereinafter referred to as “the Parties” and separately as “a Party”),

Wishing to ensure the reciprocal protection of Classified Military Information exchanged between the Parties;

Have agreed as follows:

ARTICLE 1

PURPOSE

The Parties shall ensure the protection of Classified Military Information (hereinafter referred to as “CMI”) under the terms set forth herein, provided that they are consistent with the national laws and regulations in force of the respective Parties.

ARTICLE 2

DEFINITIONS

For the purposes of this Agreement,

(a) “CMI” means any defense-related information that is generated by or for the use of or held by the competent authorities of the Government of the Republic of Korea or the Government of Japan, and that requires protection in the interests of national security of the respective Parties. The information shall bear a security classification and, where necessary, an appropriate indication to identify such information as CMI. Such information may be in oral, visual, electronic, magnetic, or documentary form, or in the form of equipment or technology;

(b) “Originating Party” means the party that provides CMI;

(c)“Receiving Party“ means the Party that receives CMI provided by the Originating Party;

(d) “Competent authorities” means agencies of a Party which are designated by the Party as authorities responsible for the protection of defense-related information. Each Party shall notify the other Party, through the diplomatic channel, of its competent authorities; and

(e) “Personnel security clearance” means an eligibility for handling securely CMI granted to individuals in accordance with each Party’s appropriate procedures.

ARTICLE 3

NATIONAL LAWS AND REGULATIONS

Each Party shall notify the other Party of its national laws and regulations in force related to the protection of CMI, upon request, and of any changes to them that would affect the protection of CMI under this Agreement.

ARTICLE 4

SECURITY CLASSIFICATION AND MARKING OF CMI

1.CMI shall be marked with one of the following security classifications:

(a)in relation of the Government of Japan, Bouei Himitsu 防衛秘密 for CMI designated as Defense Secret according to the Self-Defense Forces Law, or Gokuhi 極秘 or Hi 秘 for other CMI; and

(b)in relation to the Government of the Republic of Korea, GUNSA Ⅱ-KUP BI MIL 군사 Ⅱ급 비밀 or GUNSA Ⅲ-KUP BI MIL 군사 Ⅲ급 비밀.

2. The Receiving Party shall mark all provided CMI with the name of the Originating Party and the corresponding security classification of the Receiving Party as follows:

3. Documents or media produced by the Receiving Party that contain CMI provided by the Originating Party shall be marked with the appropriate security classification and shall bear an indication that the documents or media contain CMI provided by the Originating Party.

ARTICLE 5

SUPPLEMENTAL IMPLEMENTING ARRANGEMENT

Supplemental implementing arrangements under this Agreement may be made by the competent authorities of the Parties.

ARTICLE 6

PRINCIPLES OF PROTECTING CMI

In order to protect provided CMI, the Parties shall ensure that:

(a)the Receiving Party shall not release the CMI to any government, person, firm, institution, organization, or other entity of a third country without the prior written approval of the Originating Party;

(b)the Receiving Party, subject to its national laws and regulations in force, shall take appropriate measures to provide to the CMI a degree of protection substantially equivalent to that afforded by the Originating Party;

(c)the Receiving Party shall not use the CMI for any other purpose than that for which it was provided, without the prior written approval of the Originating Party;

(d)the Receiving Party shall observe intellectual property rights such as patents, copyrights, or trade secrets applicable to the CMI, subject to its national laws and regulations in force;

(e)each governmental facility that handles the CMI shall maintain a registry of individuals who have personnel security clearances and are authorized to have access to such information;

(f)procedures for identification, location, inventory, and control of the CMI shall be established by each Party to manage the dissemination of and access to the CMI;

(g)the Originating Party shall promptly notify, in writing, the Receiving Party of any changes in the security classification of the CMI which was previously provided to the Receiving Party. The Receiving Party shall alter the security classification of the CMI in accordance with the Originating Party's notification; and

(h)when the CMI is no longer required for the purpose for which it was provided, the Receiving Party shall, as appropriate, either:

(ⅰ)return the CMI to the Originating Party, or

(ⅱ)destroy the CMI in accordance with Article 13 and subject to its national laws and regulations in force.

ARTICLE 7

PERSONNEL ACCESS TO CMI

1. No government official shall be entitled to access to provided CMI solely by virtue of rank, appointment, or a personnel security clearance.

2. Access to provided CMI shall be granted only to those government officials whose official duties require such access and who have been granted a personnel security clearance subject to the national laws and regulations in force of the Receiving Party.

3. The Parties shall ensure that the determination on the granting to a government official of a personnel security clearance is consistent with the interests of national security and based upon all available information indicating whether the government official is trustworthy and reliable in the handling of provided CMI.

4. Appropriate procedures shall be implemented by the Parties to ensure that the criteria referred to in the preceding paragraph have been met, subject to the national laws and regulations in force of each Party, with respect to any government official to be granted access to provided CMI.

5. Before a representative of one Party provides CMI to a representative of the other Party, the Receiving Party shall provide to the Originating Party an assurance that:

(a)the representative possesses the necessary level of personnel security clearance;

(b)the representative requires access for official purposes; and

(c)the Receiving Party, subject to its national laws and regulations in force, shall take appropriate measures to provide to the CMI a degree of protection substantially equivalent to that afforded by the Originating Party.

ARTICLE 8

VISIT

Authorizations for visits by representatives of one Party to facilities of the other Party where access to CMI is required shall be limited to those necessary for official purposes. Authorization to visit a facility that is located in the territory of the country of one Party shall be granted only by the Party. The visited Party shall be responsible for advising the facility of the proposed visit, the topic, the scope, and highest level of CMI that may be furnished to the visitor. Requests for visits by representatives of the Parties shall be submitted by the relevant competent authority of the visiting Party to the relevant competent authority of the visited Party.

ARTICLE 9

TRANSMISSION OF CMI

CMI shall be transmitted between the Parties through Government-to-Government channels. Upon such transfer, the Receiving Party shall assume responsibility for custody, control, and security of the CMI.

ARTICLE 10

SECURITY OF FACILITY

Each Party shall be responsible for the security of all governmental facilities where provided CMI is kept and shall assure that for each such facility qualified government officials are appointed who shall have the responsibility and authority for the control and protection of the CMI.

ARTICLE 11

STORAGE

The Parties shall store provided CMI in a manner that ensures access only by those individuals who have been authorized access pursuant to Articles 7 and 16.

ARTICLE 12

SECURITY REQUIREMENTS DURING TRANSMISSION OF CMI

The minimum requirements for the security of CMI during transmission shall be as follows:

(a) Classified documents and media

(ⅰ) Documents and media containing CMI shall be transmitted in double, sealed envelopes with the innermost envelope bearing only the security classification of the documents or media and the organizational address of the intended receiving competent authority and the outer envelope bearing the organizational address of the receiving competent authority, the organizational address of the originating competent authority, and the registry number, if applicable.

(ⅱ) No indication of the security classification of the enclosed documents or media shall be made on the outer envelope. The sealed envelope shall then be transmitted according to the prescribed regulations and procedures of the Originating Party.

(ⅲ) Receipts shall be prepared for packages containing classified documents or media that are transmitted between the Parties and a receipt for the enclosed documents or media shall be signed by the final receiving competent authority and returned to the originating competent authority.

(b)Classified equipment

(ⅰ)Classified equipment shall be transmitted in sealed, covered vehicles or be securely packaged or protected in order to prevent identification of its details, and kept under continuous control to prevent access by unauthorized persons.

(ⅱ) Classified equipment that must be stored temporarily awaiting shipment shall be placed in a storage area that provides protection commensurate with the level of security classification of the equipment. Only authorized personnel shall have access to the storage area.

(ⅲ)Receipts shall be obtained on every occasion when classified equipment changes hands en route.

(ⅳ)Receipts shall be signed by the final receiving competent authority and returned to the originating competent authority.

(c) Electronic transmissions

CMI transmitted by electronic means shall be protected during transmission using encryption appropriate for the level of security classification of the CMI. Information systems processing, storing, or conveying CMI shall receive security accreditation by the appropriate authority of the Party employing the system.

ARTICLE 13

DESTRUCTION

1.The Parties shall destroy classified documents and media by burning, shredding, pulping, or other means preventing reconstruction in whole or in part of provided CMI.

2. The Parties shall destroy classified equipment beyond recognition or modify it so as to preclude reconstruction in whole or in part of provided CMI.

ARTICLE 14

REPRODUCTION

When the Parties reproduce classified documents or media, they shall also reproduce all original security markings thereon. The Parties shall place such reproduced classified documents or media under the same controls as the original classified documents or media. The Parties shall limit the number of copies to that required for official purposes.

ARTICLE 15

TRANSLATION

The Parties shall ensure that all translations of provided CMI are done by individuals with personnel security clearances pursuant to Articles 7 and 16. The Parties shall keep the number of copies to a minimum and control the distribution. Such translations shall bear an appropriate security classification and a suitable notation in the language into which it is translated indicating that the document or media contains CMI of the Originating Party.

ARTICLE 16

RELEASE OF CMI TO CONTRACTORS

Prior to the release to a contractor (including a subcontractor, whenever the term is used herein) of any CMI received from the Originating Party, the Receiving Party shall take appropriate measures, subject to its national laws and regulations in force, to ensure that:

(a)no individual is entitled to access to the CMI solely by virtue of rank, appointment, or a personnel security clearance;

(b) the contractor and the contractor’s facilities have the capability to protect the CMI;

(c) all individuals whose official duties require access to the CMI have personnel security clearances;

(d) a personnel security clearance is determined in the same manner as provided for in Article 7;

(e) appropriate procedures are implemented to provide assurance that the criteria referred to in paragraph 3 of Article 7 have been met with respect to any individual granted access to the CMI;

(f) all individuals having access to the CMI are informed of their responsibilities to protect it;

(g) initial and periodic security inspections are carried out by the Receiving Party at each contractor facility where the CMI is stored or accessed to ensure that it is protected as required in this Agreement;

(h) access to the CMI is limited to those persons whose official duties require such access;

(i) a registry of individuals who have personnel security clearances and are authorized to have access to the CMI is maintained at each facility;

(j) qualified individuals are appointed who shall have the responsibility and authority for the control and protection of the CMI;

(k) the CMI is stored in the same manner as provided for in Article 11;

(l) the CMI is transmitted in the same manner as provided for in Articles 9 and 12;

(m)classified documents and media and classified equipment are destroyed in the same manner as provided for in Article 13;

(n)classified documents and media are reproduced and placed under control in the same manner as provided for in Article 14; and

(o)translation of the CMI is done and copies are treated in the same manner as provided for in Article 15.

ARTICLE 17

LOSS AND COMPROMISE

The Originating Party shall be informed immediately of all losses or compromises as well as possible losses or compromises of its CMI and the Receiving Party shall initiate an investigation to determine the circumstances. The results of the investigation and information regarding measures taken to prevent recurrence shall be forwarded to the Originating Party by the Receiving Party.

ARTICLE 18

VISITS BY SECURITY REPRESENTATIVES

Implementation of the foregoing security requirements can be advanced through reciprocal visits by security representatives of the Parties. Accordingly, security representatives of each Party, after prior consultation, shall be permitted to visit the other Party to discuss security procedures and observe their implementation in the interest of achieving reasonable comparability of their respective security systems on mutually agreed venues and in a mutually satisfactory manner. Each Party shall assist the security representatives in determining whether CMI provided by the other Party is being adequately protected.

ARTICLE 19

COSTS

Each Party shall bear its own costs incurred in implementing this Agreement, subject to its national laws and regulations in force and within the limit of the budgetary appropriations of the Party.

ARTICLE 20

DISPUTE SETTLEMENT

1. Any disputes concerning the interpretation or application of this Agreement shall be settled only by consultation between the Parties.

2. During the settlement of disputes under paragraph 1, the Parties shall continue to protect provided CMI pursuant to this Agreement.

ARTICLE 21

ENTRY INTO FORCE, AMENDMENT, DURATION AND TERMINATION

1. This Agreement shall enter into force on the latter of the dates of the written notifications through the diplomatic channel by which the Parties confirm that their respective legal requirements for its entry into force have been fulfilled.

2. This Agreement may be amended at any time by mutual written consent of the Parties.

3. This Agreement shall remain in force for a period of one year and shall be automatically extended annually thereafter unless either Party notifies the other in writing through the diplomatic channel ninety days in advance of its intention to terminate the Agreement.

4. Notwithstanding the termination of this Agreement, all CMI provided pursuant to this Agreement shall continue to be protected in accordance with the provisions of this Agreement.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective Governments, have signed this Agreement.

DONE at on , 2012, in duplicate, in the English language.