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We don’t have any new evidence of the progress that North Korea is actually making in its uranium enrichment and LWR projects. But a foreign ministry statement posted on the KCNA site on November 30 is worth parsing in some detail.
According to the statement, “The construction of experimental LWR and the low enriched uranium for the provision of raw materials are progressing apace.” The fault for this state affairs lies entirely with the outside world. The decision to pursue the enrichment/LWR route was taken because there “was no prospect for getting LWRs whose delivery was promised from outside.” As we have argued repeatedly, this promise—however vaguely worded—was a mistake.
The bulk of the foreign ministry statement is taken up with a reassertion of the claim that North Korea has a legal right to the peaceful use of nuclear energy. It notes the “stark reality” that other “countries outside the NPT are conducting nuclear activities for peaceful purposes.” It also notes that the right to peaceful uses of nuclear energy is reiterated in the first article of the 2005 Joint Statement. As a result, the enrichment/LWR projects cannot be a "violation" of the September 19 joint statement. And of course, peaceful use is a pillar of both the NPT and IAEA.
The US position is that enrichment is in fact a violation of both UNSC resolutions 1718 and 1874 and the 2005 Joint Statement, as Marc Toner reiterated in the State Department briefing on the same day as the North Korean statement.
But the reasons are far from simple. In November 2002, in the wake of the enrichment revelations that triggered the crisis, the Board of Governors of the IAEA adopted a resolution that stated that enrichment "or any other covert nuclear activities, would constitute a violation of the DPRK´s international commitments, including the DPRK´s safeguards agreement with the Agency pursuant to the NPT."
North Korea got around this constraint by announcing its withdrawal from the NPT effective as of 11 January 2003, as is permitted by the NPT. No agreed statement on North Korea’s withdrawal was ever issued by the NPT States Parties, or by the NPT depositary States (Russia, UK and USA), nor by the UN Security Council.
The IAEA, of course, is not a party to the NPT. The only thing that the IAEA could do following the withdrawal was to point out that North Korea was not in compliance with its safeguards agreement, which it did (the IAEA has a useful chronology of its dealings with the DPRK).
But the 2006 nuclear test allowed the UNSC to speak on the issue, which it did with UNSCR 1718. 1718 calls on the DPRK not only to abandon its nuclear weapons programs but “all…existing nuclear programmes” as well. The logic is related to North Korea’s exit from the NPT, abrogation of its safeguards agreements but ultimately to the nuclear test of 2006. The demands made in 1718 are justified on the grounds that the test posed a challenge to the NPT and that North Korea “cannot have the status of a nuclear-weapon state in accordance with the Treaty on the Non-Proliferation of Nuclear Weapons” even if it withdraws from the treaty.
US interpretation of the Joint Statement has implicitly seen North Korea’s right to peaceful pursuit of nuclear energy as occurring within the context of successful denuclearization and ongoing commitment to the NPT and its IAEA safeguards, not outside it. Put differently, the US rejects the idea that India and Pakistan constitute a precedent for legal peaceful use.
Obviously, this is not just a legal issue but a political one. Interestingly, the Russians were quick to denounce the North Korean statement. "The consistent implementation of the uranium programme in North Korea cannot but create serious worry," the Russian Foreign Ministry said in a statement on its website.
"We call on our North Korean partners to ... announce a moratorium on all nuclear activities, including uranium enrichment, and invite IAEA specialists to examine the uranium enrichment facility at its Yongbyon nuclear centre," it said.
The Russian statement was in contrast to the Chinese response, which simply “noted” the foreign ministry statement and reiterated its standard call to resume the talks and address the issue in the 6PT framework.
In the US, Lee Sigal used the foreign ministry announcement to once again make the case for engagement. Whatever the merits of Sigal’s arguments, the “screw you” attitude of the North Korean statement hardly makes it easier for the US to move forward.
