Nuclear Nonproliferation: Implications of the U.S./North Korean Agreement
on Nuclear Issues (Letter Report, 10/01/96, GAO/RCED/NSIAD-97-8).

Pursuant to a congressional request, GAO reviewed the agreement between
the United States and North Korea that addresses the threat of North
Korean nuclear proliferation, focusing on whether: (1) the agreement is
a non-binding political agreement; (2) the United States could be held
financially liable for a nuclear accident at a North Korean reactor
site; (3) North Korea is obligated to pay to upgrade its existing
electric power distribution system; and (4) the agreement is being
implemented consistent with the applicable laws governing the transfer
of U.S. nuclear components, materials, and technology.

GAO found that: (1) the United States executed a non-binding political
agreement, since it would not have been in the United States' interest
to legally obligate itself to provide nuclear reactors and interim
energy to North Korea; (2) the Korean Peninsula Development Organization
has taken steps to protect its members from nuclear liability claims by
North Korea and third-party countries by establishing a risk management
program; (3) North Korea is not legally obligated to pay for upgrades to
its electric power distribution system; (4) the Departments of State and
Energy have complied with the statutory requirements governing
technology transfers to North Korea; and (5) State has secured a
commitment from North Korea to execute an agreement for peaceful nuclear
cooperation if needed.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  RCED/NSIAD-97-8
     TITLE:  Nuclear Nonproliferation: Implications of the U.S./North 
             Korean Agreement on Nuclear Issues
      DATE:  10/01/96
   SUBJECT:  Nuclear proliferation
             Arms control agreements
             Nuclear weapons
             Electric power transmission
             International cooperation
             Technology transfer
             Nuclear reactors
             Government liability (legal)
             Nuclear facility safety
             Atomic energy defense activities
IDENTIFIER:  South Korea
             Japan
             Australia
             Canada
             Chile
             Finland
             Indonesia
             New Zealand
             North Korea
             Malaysia
             
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Cover
================================================================ COVER


Report to the Chairman, Committee on Energy and Natural Resources,
U.S.  Senate

October 1996

NUCLEAR NONPROLIFERATION -
IMPLICATIONS OF THE U.S./NORTH
KOREAN AGREEMENT ON NUCLEAR ISSUES

GAO/RCED/NSIAD-97-8

The U.S./North Korean Agreement

(170269)


Abbreviations
=============================================================== ABBREV

  DOE - Department of Energy
  DPRK - Democratic People's Republic of Korea
  GAO - General Accounting Office
  IAEA - International Atomic Energy Agency
  KEDO - Korean Peninsula Energy Development Organization
  LWR - light-water reactor
  MW(e) - megawatt electric
  NPT - Nuclear Non-Proliferation Treaty
  NRC - Nuclear Regulatory Commission

Letter
=============================================================== LETTER


B-272530

October 1, 1996

The Honorable Frank H.  Murkowski
Chairman, Committee on Energy
 and Natural Resources
United States Senate

Dear Mr.  Chairman: 

North Korea is suspected of having produced material usable for
manufacturing nuclear bombs.  On October 21, 1994, the United States
and North Korea concluded an agreement known as the "Agreed
Framework" to address the threat posed by North Korea's nuclear
program and to otherwise diffuse the tensions that have existed on
the Korean Peninsula since the period of the Korean War.\1 Under the
agreement, the United States made a commitment to, among other
things, create an international consortium of member countries--the
Korean Peninsula Energy Development Organization (KEDO)--to replace
North Korea's graphite-moderated reactors with light-water reactors. 
In exchange, North Korea agreed to, among other things, stop
operating and constructing its reactors and related facilities and
eventually dismantle them.  The light-water reactors are preferred
over graphite-moderated reactors because, in part, they do not
produce materials as easily used to make nuclear weapons.\2

This report responds to your request that we determine whether (1)
the Agreed Framework is a nonbinding political agreement, (2) the
United States could be held financially liable for a nuclear accident
at the North Korean reactor site, (3) North Korea has obligated
itself to pay the cost of upgrading its existing electricity power
distribution system, and (4) the agreement is being implemented
consistent with the applicable laws governing the transfer of U.S. 
nuclear components, materials, and technology. 


--------------------
\1 "Agreed Framework Between the United States of America and the
Democratic People's Republic of Korea [DPRK]," commonly known as
North Korea. 

\2 Reactors require a substance called a "moderator" to achieve a
nuclear chain reaction.  The type of moderator used varies, depending
on the plant's design.  North Korea uses graphite as the moderator
for its reactors, whereas water is used in light-water reactors. 
Graphite-moderated reactors are more useful for producing
plutonium-239--the most desirable isotope for making nuclear weapons. 
The fuel rods in light-water power reactors stay in the reactors
longer, creating spent fuel with higher concentrations of other
isotopes that, according to the Department of State, make the
material (1) more dangerous to handle because of high levels of
radiation and (2) more difficult to produce bombs with predictable
yields. 


   RESULTS IN BRIEF
------------------------------------------------------------ Letter :1

The Agreed Framework can be properly described as a nonbinding
political agreement.  Therefore, its pledges--including those
involving financial outlays--are not legally enforceable.  Agreements
of this type do not require the Congress's prior involvement or
approval and, as we have suggested in the past, can have the effect
of pressuring the Congress to appropriate money to implement an
agreement with which it had little involvement.  According to the
Department of State, the United States executed a nonbinding
agreement because it would not have been in the country's interest to
legally obligate itself to provide the reactors and interim energy to
North Korea. 

Our analysis of the existing nuclear liability protections confirms
that the foundation of KEDO's risk protection program is in place. 
KEDO is aware that further steps need to be taken and, as a result,
plans to obtain additional protections to ensure that KEDO and its
members are fully shielded from possible liability claims.  Without
knowing the contents of these future protections, it is not possible
to fully assess the adequacy of the liability protection that will be
provided to KEDO and its members.  Nevertheless, our assessment of
the liability provisions in the KEDO and supply agreements and KEDO's
intention to secure additional protections, suggests that KEDO and
its members--including the United States--will be adequately
protected against nuclear damage claims from North Korea and
third-party countries.  Finally, according to KEDO, it will not ship
any fuel assemblies to North Korea or allow the reactors to be
commissioned unless and until KEDO and its members consider that all
aspects of the risk protection program are in place. 

North Korea's existing electricity transmission and distribution
system (power grid) will need to be modernized to distribute the
electricity generated by the two light-water reactors being provided. 
Upgrading the power grid could cost as much as $750 million.  Thus
far, no party has obligated itself to pay for the upgrade.  The
United States and KEDO maintain that North Korea is responsible;
however, North Korea has not yet legally obligated itself to pay. 
This circumstance leaves open the possibility that, in the future,
North Korea could exert pressure on others to pay for upgrading the
grid. 

The Departments of State and Energy have taken steps to carry out the
requirements of the Atomic Energy Act of 1954, as amended.  It is too
early to say whether the United States and North Korea will need to
conclude an agreement for cooperation--as set forth in the
act--because decisions have not yet been made about what, if
anything, the United States will supply for the reactors. 
Nevertheless, an agreement appears likely because a U.S.  firm
currently supplies a major component for the reactors that are to be
delivered.  State is prepared for the possibility that an agreement
will be needed and has already secured North Korea's commitment to
execute one if it becomes necessary.  The Department of Energy is
also complying with the act's requirement to authorize the transfers
of U.S.  reactor technology abroad.  In fact, the five authorizations
it has granted so far contain additional safeguards to address the
concerns about technology transfers to North Korea. 


   BACKGROUND
------------------------------------------------------------ Letter :2

North Korea has several nuclear facilities that, collectively, have
the potential to produce nuclear fuel for weapons.  Most are located
at Yongbyon, 60 miles north of Pyongyang.  The major installations
include (1) a 5-megawatt electric (MW(e)) research reactor, (2) two
larger reactors that were under construction--a 50-MW(e) reactor in
Yongbyon and a 200-MW(e) reactor at Taechon, and (3) a plutonium
reprocessing facility.\3

The 5-MW(e) research reactor was constructed in the 1980s and is
thought to be capable of producing about 7 kilograms of plutonium
annually.  The two reactors under construction were expected to yield
another 200 kilograms of plutonium annually--enough plutonium for
about 50 atomic bombs per year.\4

The reprocessing facility separates weapons-grade plutonium-239 from
the reactor's spent fuel.  The reactor facilities reportedly were not
attached to a power grid, increasing concern that the facilities were
intended to produce material for making nuclear weapons rather than
for producing electricity. 

Under the Agreed Framework, North Korea made a commitment to, among
other things, (1) remain a party to the Nuclear Non-Proliferation
Treaty--a treaty aimed at preventing the spread of nuclear weapons;
(2) freeze the operation and construction of its graphite-moderated
reactors and related facilities, including the reprocessing plant,
and eventually dismantle them; and (3) cooperate with the United
States to safely store and dispose of the spent fuel in its
possession.  In return for these concessions, the United States
agreed to, among other things, create an international consortium of
member countries to (1) replace North Korea's graphite-moderated
reactors with a light-water reactor project by a target date of 2003
and (2) supply North Korea with energy--heavy oil for heating and
electricity production--pending the completion of the first
light-water reactor.  (App.  I provides additional information about
the contents of the agreement.)

According to State and other administration sources, the agreement to
replace North Korea's 5-MW(e) reactor and the two larger reactors
under construction was needed because, unlike light-water reactors,
the North Korean reactors and related nuclear facilities were
particularly well suited to produce nuclear materials.  In addition,
if the two nuclear reactors had been completed, North Korea would
have vastly increased the amount of nuclear material in its
possession.  Finally, North Korea was believed to be doubling its
plutonium separation capacity.  (App.  II provides a chronology of
events preceding the Agreed Framework, including information on North
Korea's suspected reprocessing activities.)

On March 9, 1995, the United States, Japan, and the Republic of Korea
(South Korea) founded KEDO to finance and supply the reactors (the
"light-water reactor project") and interim energy.\5 On December 15,
1995, KEDO and North Korea concluded negotiations on an agreement for
supplying the project (supply agreement).\6

The supply agreement obligates KEDO to provide two light-water
reactors--each with a generating capacity of about 1,000 MW(e)--to
North Korea.  The reactors will be an advanced version of a design of
U.S.  origin and technology currently under construction in South
Korea.  The agreement specifies that KEDO will finance the cost of
the project--expected to exceed $4 billion--and that North Korea will
repay the interest-free loan over an extended period.\7

The supply agreement authorizes KEDO to select a prime contractor to
carry out the project.  KEDO selected the Korea Electric Power
Corporation--the South Korean, partially state-owned utility with
experience in the construction, operation, and maintenance of nuclear
power plants.  Preliminary construction at the reactor site is
expected to begin in the fall of 1996 at Sinpo, North Korea.  See
figure 1 for a map identifying Sinpo and other relevant North Korean
sites. 

   Figure 1:  Sinpo and Other
   Relevant North Korean Sites

   (See figure in printed
   edition.)


--------------------
\3 When the Agreed Framework was concluded, the two larger reactors
were expected to be completed in the mid-1990s. 

\4 In January 1994, the Department of Energy reported that, depending
on the technology used, as little as four kilograms of plutonium is
sufficient to manufacture a nuclear bomb. 

\5 "Agreement on the Establishment of the Korean Peninsula Energy
Development Organization." This agreement is hereafter described as
the "KEDO agreement." Through the end of August 1996, six other
countries--Australia, Canada, Chile, Finland, Indonesia, and New
Zealand--had joined KEDO.  Efforts continue to recruit additional
KEDO members and, according to the State Department, Argentina,
Brazil, and France are expected to become members soon. 

\6 "Agreement on Supply of a Light-Water Reactor Project to the
Democratic People's Republic of Korea Between the Korean Peninsula
Energy Development Organization and the Government of the Democratic
People's Republic of Korea."

\7 KEDO receives funds through contributions from members and
nonmembers.  South Korea and Japan are expected to provide the
majority of the funds needed for the light-water reactor project. 


   THE AGREED FRAMEWORK CAN BE
   PROPERLY CHARACTERIZED AS A
   NONBINDING POLITICAL AGREEMENT
------------------------------------------------------------ Letter :3

The Agreed Framework can be properly described as a nonbinding
political agreement.  The Agreed Framework's broad pledges--as later
implemented in more defined, binding agreements--and the subsequent
actions of the parties suggest that both the United States and North
Korea regarded the Agreed Framework as a nonbinding, preliminary
arrangement. 

Officials at State said that the United States executed a nonbinding
political document because it would not have been in the United
States' interest to accept an internationally binding legal
obligation to provide the reactors and interim energy to North Korea. 
Instead, they said that the United States wanted the flexibility to
respond to North Korea's policies and actions in implementing the
Agreed Framework--flexibility that binding international agreements,
such as a treaty, would not have provided. 

According to State, its position that the agreement is nonbinding is
supported by (1) the agreement's language and form, which are not
typical of binding international agreements, and (2) the fact that
neither side has since acted in a manner that is inconsistent with
such an understanding.  In connection with the language used in the
Agreed Framework, State maintains that the most important indicator
of the parties' intent is the absence of the word "agreed" and the
use, instead, of the word "decided" in the agreement's preamble.\8

In our view, the language of the Agreed Framework is not entirely
clear about the intent of the United States and North Korea to
establish a nonbinding political agreement.  Nevertheless, the
agreement's tone and form and, particularly, the subsequent actions
of the United States and North Korea suggest that the Agreed
Framework was intended to be a nonbinding international agreement. 
The agreement consists of four general pledges, all of which are
consistent with the kind of broad declaration of goals and principles
that characterize nonbinding international agreements.\9 Furthermore,
the agreement omits provisions--such as provisions on the process for
amending the agreement and for resolving disputes--that would
normally be included in a binding agreement. 

The subsequent actions by the United States and North Korea also
suggest that the Agreed Framework was intended to be a nonbinding,
preliminary arrangement.  In a joint press statement on June 13,
1995, at Kuala Lumpur, Malaysia, the two countries reaffirmed their
"political commitments to implement the .  .  .  Agreed Framework."
Of greater significance was the conclusion of both the KEDO and
supply agreements--two binding international agreements that
implement the Agreed Framework's provisions for supplying the
reactors and interim energy to North Korea. 

Executing nonbinding international agreements like the Agreed
Framework does not require prior congressional involvement or
approval and, as we have suggested in the past, can have the effect
of pressuring the Congress to appropriate moneys to implement an
agreement with which it had little involvement.\10 For the North
Korean project, this issue is complicated by the political importance
of the agreement and the existence of the KEDO and supply
agreements--neither of which received formal congressional approval. 
Taken together, these binding international agreements--described in
very concrete and specific terms--effectively incorporate the Agreed
Framework's provisions for supplying the reactors and energy to North
Korea. 

If the Agreed Framework had been structured as a treaty or some other
form of binding international agreement, its pledges would have
established legally binding commitments, under both international law
and the domestic law of the United States.  It would also have been
subjected to greater formal congressional oversight.  (App.  III
provides our full analysis on the structure of the Agreed Framework,
including our analysis of the structure's impact on (1) the legal
enforceability of the agreement and (2) congressional oversight.)


--------------------
\8 The preamble of the agreement states that "[t]he United States and
the DPRK [North Korea] decided to take the following actions for the
resolution of the nuclear issue."

\9 App.  I provides information about the agreement, including its
four general pledges. 

\10 See 59 Comp.  Gen.  369, 372 (1980). 


   EXISTING AND PLANNED NUCLEAR
   LIABILITY PROTECTIONS APPEAR
   ADEQUATE
------------------------------------------------------------ Letter :4

According to KEDO, it places a high priority on protecting the
present and future members of KEDO against the risk of nuclear
liability that may arise from North Korea's light-water reactor
project.  As a result, KEDO developed a "comprehensive risk
management program" to protect itself and its member countries.  The
foundation of the risk management program is contained in the KEDO
and supply agreements.  Over time, KEDO plans to negotiate additional
protections to fully shield itself and its members from the risk of
nuclear liability.  Without knowing the contents of these future
protections, it is not possible to fully assess the adequacy of the
liability protection that will be provided to KEDO and its members. 
Nevertheless, the provisions already negotiated and KEDO's plan to
secure additional protections, suggest that KEDO and its members will
be adequately protected.  Moreover, according to KEDO, it will not
ship any fuel assemblies to North Korea or allow the reactors to be
commissioned unless and until KEDO and its members consider that all
aspects of the risk management program are in place. 


      PROTECTIONS AGAINST NORTH
      KOREAN NUCLEAR CLAIMS
---------------------------------------------------------- Letter :4.1

The supply and KEDO agreements contain a number of protections that
are intended to preclude North Korea from making claims against KEDO
or KEDO members for damages from a nuclear incident.  The principal
protection requires North Korea to set up a legal mechanism for
satisfying all claims brought within North Korea.  The supply
agreement also contains a provision precluding North Korea from
bringing claims against KEDO for any nuclear damage or loss, and both
the supply and KEDO agreements contain a general
limitation-of-liability provision that appears to cover nuclear
damage. 

The principal protection in the supply agreement requires North Korea
to "ensure that a legal and financial mechanism is available for
satisfying claims brought within North Korea for damages from a
nuclear incident."\11 Consistent with international practice, the
agreement specifies that "[t]he legal mechanism shall include the
channeling of liability in the event of a nuclear incident to the
operator on the basis of absolute liability."\12 North Korea must
also ensure that the operator--a North Korean entity--is able to
satisfy potential claims for nuclear damage.  North Korea has not yet
enacted legislation--referred to as channeling
legislation--satisfying its responsibilities under the Agreed
Framework.  In the next few years, KEDO intends to help North Korea
draft the required legislation and to monitor North Korea's efforts
to establish the financial mechanism for paying possible nuclear
damage claims. 

The supply agreement also contains a second provision that precludes
North Korea from bringing any nuclear damage or loss claims against
KEDO and its contractors and subcontractors.  The scope of this
provision is broad and, according to KEDO, covers claims for nuclear
damage caused both before and after the reactors have been turned
over to North Korea.  A third provision explicitly states that North
Korea shall seek recovery solely from the property and assets of KEDO
for any claims arising (1) under the supply agreement or (2) from any
actions of KEDO and its contractors and subcontractors. 
Correspondingly, the KEDO agreement contains a general
limitation-of-liability provision which specifies that the members of
KEDO are not liable for the actions or obligations of KEDO. 

Taken together, the described provisions appear to bar North Korea
from making any nuclear claims against KEDO's member
countries--including the United States--in North Korean courts. 
However, none of the existing provisions explicitly precludes claims
by North Korean nationals or North Korean nongovernmental entities. 
According to KEDO, it intends to ensure that the channelling
legislation, to be enacted by North Korea, protects KEDO and its
members from possible claims from these sources. 


--------------------
\11 As used in the supply agreement, a "nuclear incident" is "any
occurrence or series of occurrences having the same origin, which
causes nuclear damage."

\12 The practice of "channeling liability" to the operator of a
nuclear plant is commonly used in the field of nuclear liability. 
The practice requires a nuclear plant operator to assume full
liability for all damage resulting from a nuclear incident. 


      PROTECTIONS AGAINST NUCLEAR
      CLAIMS MADE BY THIRD PARTIES
---------------------------------------------------------- Letter :4.2

The largest concern of KEDO and its members may be the nuclear damage
claims brought by third parties in courts and tribunals outside of
North Korea.  Unlike the Paris and Vienna Conventions--the principal
international conventions on third party nuclear liability--which
include provisions limiting the jurisdiction for hearing claims to
the courts in the country where the nuclear incident occurs, the
supply agreement does not preclude claims from being brought in
jurisdictions outside of North Korea. 

It is generally recognized that a country is liable for damage caused
to the environment of another country.  Thus, once North Korea
assumes control over the reactors, North Korea and the operator of
the reactors would likely become the primary targets of claims for
nuclear damage incurred outside of the country.  Nevertheless,
lawsuits could also be brought against KEDO and its members.  To
address this possibility, the supply agreement requires North Korea
to (1) enter into an agreement for indemnifying KEDO and (2) secure
nuclear liability insurance or other financial security to protect
KEDO and its contractors and subcontractors from any claims by third
parties resulting from a nuclear incident at the North Korean
reactors.  Also, as discussed earlier, the KEDO agreement contains a
general limitation-of-liability provision that appears to cover
nuclear damage liability for lawsuits brought outside of North
Korea.\13

The provision requiring indemnification and insurance protections is
intended to provide KEDO with adequate protection against suits
brought in courts outside of North Korea.  Even so, as the provision
is written, the indemnity and insurance protections extend only to
KEDO and its contractors and subcontractors and not, specifically, to
KEDO's members.  Thus, it is not clear that these protections would
cover possible awards by foreign courts against individual KEDO
members, including the United States.  Furthermore, the supply
agreement does not address the extent of the indemnity and insurance
protections that North Korea must provide, leaving questions about
whether North Korea will be required to indemnify KEDO (1) for the
entire amount of any damage awards obtained in foreign courts or for
some fixed, lesser amount and (2) if North Korea's insurance and
other financial security do not cover all claims. 

KEDO is aware of these issues and, as a result, plans to build upon
the foundation of the existing coverage to fully shield KEDO and its
members from possible nuclear liability claims by third parties.  For
example, in a future agreement--termed a "protocol"--KEDO intends to
ensure that the specific indemnity and insurance protections that it
negotiates also extend to KEDO's members.\14 In addition, according
to KEDO, the protocol will establish the level of indemnity
protection to be provided--an amount which, at a minimum, will be
consistent with international norms.  KEDO also plans to negotiate
additional liability, indemnification, and insurance protections in
its future contracts with contractors and subcontractors.  According
to KEDO, it will neither ship any fuel assemblies to the North Korea
nor allow the reactors to be commissioned "[u]nless and until KEDO
and its members consider that all aspects of the risk management
program are in place."


--------------------
\13 Furthermore, as discussed in appendix IV, if a foreign court
entertains a nuclear damage claim against the United States, the
United States could assert the defense of "sovereign immunity" as a
bar to the court's hearing the claim. 

\14 KEDO expects to begin negotiations on the agreement with North
Korea in early 1997. 


      POTENTIAL LIABILITY DURING
      TESTING OF THE REACTORS
---------------------------------------------------------- Letter :4.3

KEDO also plans to address potential liabilities that could arise
from the operation of the reactors during the test period--before
North Korea assumes control of them.\15 KEDO contends that the
radiological effects of any discharges or omissions would be minimal,
unlikely to give rise to substantial claims, and, in all likelihood,
limited to North Korea.  While KEDO views its potential liability as
minimal, it still wants to ensure that it is never the "operator" of
the reactors because it lacks the technological capability to perform
the tests and because it wants to avoid the potential liabilities
that could flow to the "operator" under the channeling legislation. 
Thus, KEDO plans to structure the arrangements for testing the
reactors so that another party--such as North Korea or a KEDO
contractor--will operate the reactors during the test period.  While
the respective views of these entities is not known, it seems
unlikely that another party would assume the responsibility for
testing the reactors without being compensated by KEDO.  (App.  IV
provides our full analysis of the nuclear liability issue.)


--------------------
\15 Under the supply agreement, KEDO is responsible for testing the
reactors. 


   QUESTIONS REMAIN ABOUT NORTH
   KOREA'S OBLIGATION TO PAY FOR
   UPGRADING ITS ELECTRICITY POWER
   GRID
------------------------------------------------------------ Letter :5

North Korea's existing electricity transmission and distribution
system is inadequate to handle the electricity that would be
generated by two new 1,000- MW(e) light-water reactors.  As a result,
much of North Korea's existing equipment will need to be replaced or
modernized before the reactors can be used.  According to State, the
upgrade could include the replacement or modernization of substations
and transformers, transmission towers, and high- voltage cables. 
State estimates that the cost of the upgrade could reach $750
million. 

None of the agreements concluded to date creates a legal obligation
to pay for the grid upgrade.\16 The State Department and KEDO
maintain that North Korea is responsible;\17 however, North Korea has
not yet legally obligated itself to pay.  State and KEDO point to a
December 15, 1995, letter from KEDO to North Korea as evidence of
their view that North Korea is responsible.  The letter--attached to
the supply agreement--pledges KEDO's nonfinancial assistance to North
Korea "in its own [North Korea's] efforts to obtain through
commercial contracts .  .  .  such power transmission lines and
substation equipment as may be needed to upgrade the DPRK [North
Korean] electric power grid." According to State, the letter was (1)
requested by North Korea, (2) drafted in consultation with North
Korea, and (3) accepted in conjunction with the signing ceremony for
the supply agreement--factors that, in State's view, constitute North
Korea's acknowledgement of its responsibility for paying for the grid
upgrade.  Nevertheless, State agrees that North Korea did not sign
the letter and that North Korea has not legally obligated itself to
pay for the upgrade.  This leaves open the possibility that, in the
future, North Korea could exert pressure on others to pay for the
grid upgrade. 


--------------------
\16 The supply agreement specifies that North Korea is legally
obligated to provide a stable supply of electricity for the
commissioning of the two light-water reactors.  This obligation is
unrelated to the issue of upgrading the power grid for its later use
in distributing electricity generated by the reactors.  According to
State, KEDO did not formally seek North Korea's legal commitment to
upgrade the power grid because it would have been illogical for North
Korea to owe KEDO a legal duty to upgrade its own grid. 

\17 According to a State Department official who participated in the
negotiations, North Korea persistently sought KEDO's agreement to
provide the grid upgrade, but KEDO consistently refused. 


   IMPLEMENTATION OF THE AGREED
   FRAMEWORK IS CONSISTENT THUS
   FAR WITH APPLICABLE U.S.  LAWS
------------------------------------------------------------ Letter :6

The Atomic Energy Act of 1954, as amended (the act), specifies the
requirements for the peaceful transfer of U.S.  nuclear equipment,
materials, and technology abroad.\18 Thus far, both State and the
Department of Energy (DOE) have complied with their statutory
obligations under the act.  In fact, the five authorizations granted
by DOE so far contain additional safeguards to address the concerns
about the technology transfers to North Korea. 


--------------------
\18 Act of Aug.  30, 1954, 68 Stat.  921.  The act was amended by the
Nuclear Non-Proliferation Act of 1978, Pub.  L.  95-242, 92 Stat. 
120. 


      AN AGREEMENT FOR COOPERATION
      WILL BE NEGOTIATED IF NEEDED
---------------------------------------------------------- Letter :6.1

The act requires the United States to execute an agreement for
peaceful nuclear cooperation with a recipient nation or group of
nations before exporting major reactor components or nuclear
materials.  It is too early to say whether an agreement for
cooperation between the United States and North Korea will be
required because decisions about what, if anything, the United States
will supply for the reactors have not yet been made.  These
uncertainties are likely to exist until at least the spring of 1997,
when arrangements for supplying some of the equipment may be
negotiated.  Nevertheless, an agreement appears likely because a U.S. 
firm, Combustion Engineering, Inc., supplies the coolant pumps--a
major reactor component--for the light-water reactors.  State is
prepared for the possibility that an agreement will be needed and, as
part of the Agreed Framework, has already secured a commitment from
North Korea to execute one if it becomes necessary.\19 (App.  V
provides information about the (1) reactors expected to be supplied
to North Korea, including information about possible U.S.  transfers
of major reactor components, and (2) statutory requirements governing
such transfers.)


--------------------
\19 Similarly, the supply agreement between KEDO and North Korea
states, "[i]n the event that U.S.  firms will be providing any key
nuclear components, the U.S.  and the DPRK [North Korea] will
conclude a bilateral agreement for peaceful nuclear cooperation prior
to the delivery of such components."


      DOE'S AUTHORIZATIONS FOR
      TECHNOLOGY TRANSFERS ARE
      PROCEEDING ACCORDING TO
      APPLICABLE REQUIREMENTS
---------------------------------------------------------- Letter :6.2

The act precludes any U.S.  person from directly or indirectly
producing special nuclear material outside of the United States
unless authorized by either an agreement for cooperation or the
Secretary of Energy.  According to DOE officials, DOE considers all
transfers of nuclear technology, including training, as having the
potential to result in the production of special nuclear materials,
thus triggering the act's requirements.  Because the United States
does not have an agreement for cooperation with North Korea,
transfers of technology must be authorized by the Secretary of
Energy.\20

DOE's regulations provide for two types of authorizations--general
and specific.\21 DOE permits U.S.  nuclear power reactor technology
to be transferred to most countries under a general authorization.\22
Similar technology transfers to North Korea and 47 other countries,
however, must be specifically authorized. 

Under DOE's regulations for a specific authorization, the Secretary
of Energy will approve an application if the Secretary
determines--with the concurrence of State and after consulting the
Arms Control and Disarmament Agency, the Nuclear Regulatory
Commission (NRC), the Department of Commerce, and the Department of
Defense--that the proposed activity would not be "inimical" to the
interests of the United States.  In making the determination, the
Secretary must evaluate whether (1) the United States has an
agreement for nuclear cooperation with the recipient country; (2) the
country is a party to the Nuclear Non-Proliferation Treaty; (3) the
country has a full-scope safeguards agreement with the International
Atomic Energy Agency (IAEA)\23 and, if not, whether the country has
accepted IAEA's safeguards on the proposed activity; (4) other
nonproliferation controls or conditions may be applicable to the
proposed activity; (5) the proposed U.S.  activity is relatively
significant; (6) comparable assistance is available from other
sources; and (7) other factors exist that may bear upon the
political, economic, or security interests of the United States,
including U.S.  obligations under international agreements or
treaties. 

Through August 1996, five U.S.  companies, including Combustion
Engineering, Inc., had requested DOE's authorization to work on the
North Korean project.  Combustion Engineering, Inc.'s August 9, 1995,
request to DOE indicated that because the North Korean reactors would
be based on the company's technology, the company expected to be
involved in most phases of the project's management, design,
manufacture, supply, training, and plant construction.  The four
other U.S.  companies requested DOE's authorization to perform a wide
range of architectural and engineering services and overall
management support on behalf of KEDO, its contractors, and
subcontractors.\24

DOE evaluated each of the requests, as required by its regulations,
and subsequently forwarded the analyses, together with its
recommendations on the proposed conditions for the transfers, to the
applicable U.S.  agencies.  State concurred with DOE's
recommendations--the only concurrence required.\25

The Secretary approved each of the authorizations, subject to
numerous conditions.  Specifically, before any transfer, the United
States must receive North Korea's assurances that (1) any technology
transferred by the U.S.  company would be used only for peaceful
nuclear power generation purposes and not for any military or
explosive purpose; (2) neither the transferred technology nor the
equipment based on it will be retransferred to another country
without the prior consent of the U.S.  government; and (3) North
Korea will place the light-water reactors under IAEA's safeguards. 

DOE also specified a number of conditions applicable to the U.S. 
companies.  Specifically, they must (1) ensure that the technology
transferred by the companies is limited to that necessary for the
licensing and safe operation of the reactors (and not technology that
would enable North Korea to design or manufacture either reactor
components or fuel) and (2) provide written quarterly reports to DOE
on their activities in support of the project and, whenever requested
by DOE, brief DOE and other U.S.  government agencies on their
activities.  DOE limited each of the authorizations to a period of 5
years, renewable by DOE in the light of experience and the
circumstances at that time. 

Thus far, DOE has complied with its statutory and regulatory
requirements for granting the authorizations.  In addition, the
conditions imposed on the authorizations indicate that DOE has sought
additional safeguards to address the concerns about possible
transfers of U.S.  nuclear technology to North Korea.  For example,
the five authorizations granted so far specify that DOE will suspend
the authorizations if either the United States or North Korea
"abrogates" the Agreed Framework or related agreements.  The
authorizations also specify additional reporting requirements for the
transfers.\26 Finally, DOE's caution about the scope of any
technology that may be transferred by the companies is intended to
provide an additional safeguard for the proposed transfers. 


--------------------
\20 State and DOE officials use the term "technology transfer" to
refer to activities that could result in the production of special
nuclear material. 

\21 The procedures for granting the authorizations are detailed in
part 810 of DOE's regulations (10 C.F.R.).  As a result, the
authorizations are generally called "part 810 authorizations."

\22 South Korea received Combustion Engineering, Inc.'s reactor
technology under a general authorization. 

\23 IAEA is an international organization affiliated with the United
Nations that, among other things, is responsible for safeguarding
nuclear facilities to ensure that nuclear material is not diverted
for military or other nonpeaceful purposes. 

\24 The other U.S.  companies are Raytheon Engineers and
Constructors, Sargent & Lundy, Stone & Webster Engineering
Corporation, and Duke Engineering & Services, Inc.  KEDO selected
Duke Engineering & Services, Inc., as its technical support
contractor in July 1996. 

\25 The other agencies also responded favorably.  NRC also commented
on a number of related matters.  For example, NRC stressed the
importance of timely and continuing actions by the United States and
others to assist North Korea in developing a sound safety culture for
the project.  NRC also stressed its strong support for the resolution
of outstanding questions about the amount of nuclear material in
North Korea's possession and the need for full safeguards inspections
by IAEA.  Finally, NRC expressed concern about possible U.S.  exports
of reactor fuel and major reactor components and noted that the
process of negotiating and obtaining legislative approval for an
agreement for cooperation between the United States and North Korea
"could raise significant [unspecified] difficulties.  .  .  ."
According to the official who manages DOE's authorization process,
NRC's comments are typical of those it generally offers in its
replies to DOE.  The Department of Defense did not comment on any of
the proposed authorizations. 

\26 DOE's regulations require a U.S.  company to submit a detailed
report of its activities within 30 days of beginning activities
covered by the authorization.  Quarterly reports and periodic
briefings are not required.  However, the regulations permit DOE to
request additional information. 


   OBSERVATIONS
------------------------------------------------------------ Letter :7

It is essential that KEDO not commission the reactors until full and
adequate liability protections are in place for KEDO and its members. 
If these protections are not in place and an accident occurs at the
North Korean reactor site, the United States--as the leading
proponent of the project--and, perhaps, to a lesser extent, Japan and
South Korea, could be subjected to strong political and humanitarian
pressure to pay nuclear damage claims.  KEDO recognizes the
importance of securing full and adequate protection and has committed
not to deliver the fuel and commission the reactors until KEDO and
its members are fully protected.  We believe that it is vital for the
Congress to monitor KEDO's future efforts in this area, including
KEDO's (1) assistance to North Korea in developing the channeling
legislation and (2) efforts to secure full and adequate indemnity and
insurance to protect against claims in countries other than North
Korea. 


   AGENCY COMMENTS
------------------------------------------------------------ Letter :8

We provided copies of this report to State, DOE, and KEDO for their
review and comment.  We met with State Department officials,
including an attorney from the Office of the Legal Advisor and the
Chief of the Agreed Framework Division, Office of Korean Affairs. 
While State generally agreed with the report's conclusions, the
officials provided detailed comments on the presentation and content
of the report.  DOE agreed with our findings and conclusions related
to its authorizations of technology transfers to North Korea.  We
incorporated the agencies' comments, as well as suggestions for
improving clarity, as appropriate.  We sought KEDO's views.  However,
a spokesperson for KEDO indicated that KEDO could not provide
comments in the time available. 


   SCOPE AND METHODOLOGY
------------------------------------------------------------ Letter :9

To obtain information for this report, we reviewed and analyzed the
Agreed Framework; the KEDO and supply agreements; applicable U.S. 
laws, regulations, and federal cases; and relevant international
agreements and cases.  We also interviewed cognizant officials from
State, DOE, NRC, KEDO, and Combustion Engineering, Inc.  (A detailed
description of our work is provided in app.  VI.) We conducted our
work from April through September 1996 in accordance with generally
accepted government auditing standards. 


---------------------------------------------------------- Letter :9.1

As agreed with your office, we plan no further distribution of this
report until 30 days from the date of this letter.  At that time, we
will send copies to the appropriate congressional committees, the
Secretaries of State and Energy, the Executive Director of KEDO, and
other interested parties.  We will also make copies available to
others upon request. 

If you have any questions, please call me at (202) 512-6543.  Major
contributors to this report are listed in appendix VII. 

Sincerely yours,

Bernice Steinhardt
Associate Director, Energy,
 Resources, and Science Issues


THE CONTENT OF THE AGREED
FRAMEWORK
=========================================================== Appendix I

The Agreed Framework between the United States and the Democratic
People's Republic of Korea (North Korea), dated October 21, 1994,
sets forth a number of actions intended to address the nuclear issue
on the Korean Peninsula.  The actions are expressed in the form of
four broad pledges.  Specifically, the countries agreed to

  -- "cooperate to replace the DPRK's [North Korea's]
     graphite-moderated reactors and related facilities with
     light-water reactor (LWR) power plants,"

  -- "move toward full normalization of political and economic
     relations,"

  -- "work together for peace and security on a nuclear-free Korean
     peninsula," and

  -- "work together to strengthen the international nuclear
     non-proliferation regime."

The agreement describes each of the broad pledges in further detail. 
The first broad pledge describes (1) the United States' agreement to
organize, under its leadership, an international consortium to
finance and supply the reactors and alternative energy to North Korea
and (2) North Korea's reciprocal pledges to, among other things,
freeze its nuclear program.\1 As specified in the agreement, the
arrangements for the reactors and energy will be in accordance with
President Clinton's October 20, 1994, letter to the Supreme Leader of
North Korea.  The letter states that the President will use the "full
powers" of his office to facilitate the arrangements for (1)
financing and constructing the reactors and (2) funding and
implementing the supply of interim energy.  If the reactors are not
completed or the energy is not provided--for reasons beyond the
control of North Korea--the President agreed to use the "full powers"
of his office, to the extent necessary, to provide both, subject to
the approval of the U.S.  Congress.  The President conditioned all of
the assurances on North Korea's continued implementation of the
policies described in the Agreed Framework. 

In connection with the countries' second broad pledge, the United
States and North Korea agreed to (l) reduce barriers on trade and
investment by January 21, 1995; (2) open liaison offices in each
other's capital following the resolution of consular and other
technical issues; and (3) upgrade bilateral relations to the
ambassadorial level once progress was made on (unspecified) issues of
concern to each side. 

For the third pledge, the United States agreed to provide formal
assurances to North Korea against the threat or use of nuclear
weapons by the United States.  In return, North Korea agreed to
consistently take steps to implement the North-South Joint
Declaration on the Denuclearization of the Korean Peninsula and to
engage in a dialogue with South Korea.\2

Finally, under the last pledge, North Korea agreed to remain a party
to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and
to allow the implementation of its agreement with the International
Atomic Energy Agency (IAEA) for safeguarding its nuclear materials
(nuclear safeguards agreement), as required by the treaty. 
Specifically, North Korea agreed--pending the conclusion of the
contract for supplying the reactors and energy--to allow IAEA to
continue the inspections needed for IAEA's continuity of safeguards
at the facilities not subject to the freeze.  Once the contract is
concluded, North Korea agreed to allow IAEA to make additional
inspections at these facilities.  North Korea also agreed to comply
fully with its IAEA safeguards agreement when a significant portion
of the reactor project is completed but before it receives delivery
of key nuclear reactor components. 


--------------------
\1 This section of the agreement also provides details about the
scope of the project.  For example, the agreement specifies that the
reactors will have a total generating capacity of approximately
2,000-megawatt electric (MW(e)) and that they will be provided by a
target date of 2003. 

\2 North Korea and South Korea signed a "Joint Declaration on the
Denuclearization of the Korean Peninsula" on Dec.  31, 1991.  Under
the agreement, the parties pledged, among other things, not to (1)
"test, produce, receive, possess, deploy or use nuclear weapons" or
(2) possess nuclear reprocessing and uranium enrichment facilities. 
The parties also agreed to allow mutual inspections of their nuclear
facilities subject to procedures to be negotiated between the
parties. 


CHRONOLOGY OF KEY EVENTS RELATED
TO THE NORTH KOREAN NUCLEAR ISSUE
========================================================== Appendix II

Mid-1950s\1

North Korea began developing its nuclear program.  The rationale for
the program was scientific research and the production of radioactive
isotopes for medical and industrial uses. 

1974

North Korea joined IAEA. 

1980s

North Korea began operating a 5-MW(e) research reactor and a
"radiochemical laboratory"--North Korea's term for its plutonium
reprocessing plant--in Yongbyon.  North Korea also began constructing
two larger reactors--a 50-MW(e) reactor in Yongbyon and a 200-MW(e)
reactor at Taechon.\2

December 1985

North Korea signed the NPT, which, among other things, obligated
North Korea to negotiate an agreement with the IAEA for safeguarding
the nuclear materials in its possession. 

1989

North Korea shut down its 5-MW(e) reactor for between 70 to 100 days. 
Sources believe that North Korea removed and later reprocessed the
fuel, separating up to 13 kilograms of weapons-grade plutonium usable
for producing nuclear bombs.  (The suspected diversion was, among
other things, inferred from a subsequent laboratory analysis of
materials collected during IAEA's inspections that began in 1992.)

1990 and 1991

North Korea ran the 5-MW(e) reactor at low levels for about 30 days
in 1990 and about 50 days in 1991.  Such low levels of operation
create the technical possibility that fuel could have been removed
and subsequently reprocessed.  However, U.S.  experts consider this
unlikely. 

April 12, 1991

The Defense Minister for the Republic of Korea (South Korea) stated
that South Korea might launch a commando attack on Yongbyon if North
Korea continued with the construction of the 50-MW(e) reactor there. 

Late 1991

The United States withdrew all nuclear weapons from South Korea,
thereby removing one rationale that North Korea had used to delay
signing its safeguards agreement with IAEA. 

December 31, 1991

North Korea and South Korea signed a "Joint Declaration on the
Denuclearization of the Korean Peninsula." They pledged, among other
things, not to (1) test, produce, receive, possess, deploy or use
nuclear weapons or (2) possess nuclear reprocessing and uranium
enrichment facilities.  The parties also agreed to allow mutual
inspections subject to procedures to be negotiated between them. 

Early January 1992

High-level officials from the United States and North Korea met to
discuss the range of issues affecting the countries' relations,
including the nuclear issue. 

January 30, 1992

North Korea signed a safeguards agreement with IAEA.  The agreement
called for IAEA to inspect the nation's nuclear facilities after
ratification by North Korea's legislative body. 

April 10, 1992

The IAEA/North Korea safeguards agreement became effective. 

May 4, 1992

North Korea submitted its declaration of nuclear materials to IAEA,
as required by IAEA's safeguards agreements.  According to the
declaration, North Korea had seven sites and about 90 grams of
plutonium in its possession that were subject to IAEA's inspections. 
According to North Korea, the nuclear material resulted from its
reprocessing of 89 defective fuel rods in 1989. 

May 1992

IAEA began inspections to verify the correctness and completeness of
North Korea's declaration.\3

July 1992

An IAEA inspection team collected information that subsequently
resulted in the disclosure of discrepancies in North Korea's
declaration of nuclear materials.  Instead of reprocessing spent fuel
from 89 damaged fuel rods on just one occasion, IAEA concluded that
North Korea has probably reprocessed spent fuel on three to four
occasions since 1989.  Additional inspections revealed further
inconsistencies in North Korea's declaration. 

Late 1992

IAEA informally requested that it be given access to two additional
sites--located in the Yongbyon nuclear complex--that it suspected of
housing nuclear waste.  North Korea allowed IAEA to visually inspect
one of the sites but denied any access to the other. 

February 9, 1993

IAEA invoked the "special inspections clause" of its safeguards
agreement with North Korea, indicating that it wanted to inspect two
sites that North

Korea had not declared and that IAEA suspected had a bearing on the
history of North Korea's nuclear program. 

February 1993

North Korea denied IAEA access to the two undeclared sites.  North
Korea said that the sites were military installations with no
connection to its nuclear program. 

February 22, 1993

At a meeting of the IAEA board, the members were shown U.S.  aerial
surveillance photographs and a chemical analysis of data collected by
IAEA inspectors.  The evidence reportedly (1) confirmed the existence
of a nuclear waste dump--long denied by North Korea--and (2)
disclosed discrepancies in North Korea's declaration of the nuclear
materials in its possession. 

March 12, 1993

North Korea announced its intention to withdraw from the NPT,
effective June 12, 1993.  The announcement elevated what was viewed
as a serious proliferation threat into a major diplomatic
confrontation between the United States and North Korea. 

April 1, 1993

IAEA declared that North Korea was not adhering to its safeguards
agreement with IAEA and, consequently, that IAEA could no longer
guarantee that North Korea's nuclear material was not being diverted
for nonpeaceful purposes. 

April 8, 1993

In a statement to the media, the President of the United Nations
Security Council welcomed all efforts to resolve the impasse that had
arisen between North Korea and IAEA.  The President encouraged IAEA
to continue, among other things, its consultations with North Korea
for a proper settlement of the nuclear verification issue. 

April 22, 1993

The United States indicated its readiness to participate in
high-level negotiations with North Korea to help resolve the crisis
caused by North Korea's refusal to abide by the NPT.  The U.S. 
objectives for the talks were to get North Korea to (1) remain in the
NPT and come into compliance with its NPT obligations, which require
full inspections at its nuclear facilities, and (2) carry out its
December 1991 denuclearization accord with South Korea.\4

May 1993

The United Nations Security Council passed a resolution requesting
North Korea (1) to allow IAEA inspections and (2) not to withdraw
from the NPT. 

IAEA sent inspectors to (1) verify that there had been no further
diversion of nuclear material and (2) maintain monitoring equipment
that IAEA had previously installed at North Korea's declared nuclear
facilities. 

June 2-11, 1993

The United States and North Korea held their first round of
high-level talks in New York.  On June 11, 1993, hours before North
Korea's withdrawal from the NPT would have become effective, the
United States and North Korea issued a joint statement in which North
Korea agreed to "suspend" its withdrawal from the NPT for as long as
it "considers necessary." North Korea also agreed to the full and
impartial application of IAEA's safeguards.  The United States
granted assurances against the threat and use of force, including
nuclear weapons, and a promise of "non-interference" in North Korea's
internal affairs.  The United States subsequently stated that (1)
North Korea must accept IAEA inspections to ensure the continuity of
the safeguards, (2) forgo reprocessing, and (3) allow IAEA to be
present when it refueled its 5-MW(e) reactor. 

July 1993

Speaking before U.S.  military forces deployed in South Korea,
President Clinton reportedly said that if North Korea developed and
used nuclear,

weapons, "we would quickly and overwhelmingly retaliate.  It would
mean the end of their country as they know it."

July 14-19, 1993

The U.S.  and North Korean delegations held a second round of
high-level negotiations in Geneva, Switzerland.  Both sides
reaffirmed the principles of the June 11, 1993, joint statement.  As
part of the final resolution of the nuclear issue, the United States
said that it was willing to explore options for replacing North
Korea's graphite-moderated reactors and related facilities with
light-water reactors. 

August 1993

North Korea limited the operations of an IAEA inspection team that
had been sent to (1) replace film and batteries in cameras and (2)
check seals installed by IAEA in 1992.  North Korea reportedly
required that the team work at night with flashlights. 

Fall 1993

IAEA requested North Korea to allow greater access to its facilities. 
North Korea denied the request.  In reaction to North Korea's rebuffs
of the IAEA, the United States refused to schedule a third
negotiating session with North Korea.  Instead, North Korean and U.S. 
officials held low-level meetings at the United Nations in October
and November 1993. 

Early November 1993

IAEA's Director General delivered a report to the United Nations
which stated that if IAEA inspectors were not permitted to revisit
North Korea's nuclear facilities, IAEA could no longer verify the
IAEA/North Korea safeguards agreement. 

November 1993

On November 11, 1993, North Korea proposed that the United States and
North Korea negotiate a "package solution" to the nuclear weapons
issue.  The United States subsequently accepted North Korea's
proposal in principle.  However, the United States required that
North Korea, among other things, allow IAEA full access to North
Korea's seven declared facilities so that IAEA could maintain its
"continuity of safeguards."

December 3, 1993

In mid-level talks at the United Nations, North Korea offered to
restore IAEA's access to five of its declared sites so that IAEA
could change the film and batteries in the cameras monitoring North
Korea's activities at the sites. 

Late 1993

The U.S.  Central Intelligence Agency and the Defense Intelligence
Agency estimated that North Korea had separated about 12 kilograms of
plutonium--enough for one to two nuclear bombs.\5

December 1993

IAEA's Director General warned that safeguards on North Korea's
declared installations and materials could no longer provide a
meaningful assurance of peaceful use.  However, he said that the
integrity of IAEA's safeguards could be restored if inspections were
reinstated. 

December 29, 1993

North Korea and the United States reached a tentative understanding
about IAEA's inspections of North Korea's declared facilities. 
Sources indicate that the understanding shifted negotiations toward
talks between North Korea and the IAEA. 

Early January 1994

North Korea announced that IAEA inspectors would be allowed to visit
all seven of its declared nuclear facilities.  (The two suspected--
undeclared--sites were still off-limits.) North Korea justified the
limited inspections on the basis that its action to withdraw from the
NPT in June 1993 had exempted it from the inspection requirements
applicable to other NPT members. 

January 1994

The Director of the Central Intelligence Agency estimated that North
Korea may have produced one or two nuclear weapons.\6

Early 1994

North Korea and IAEA conducted negotiations on the details of IAEA's
inspections pursuant to the December 29, 1993, "tentative" U.S./North
Korean understanding. 

Late January 1994

The United States announced that it would deploy additional Patriot
missile batteries, Apache helicopters, and advanced counter-artillery
radar in South Korea. 

February 15, 1994

North Korea agreed in writing to a limited inspection of all of its
declared nuclear sites in accordance with a checklist of procedures
prepared by IAEA.\7 The checklist specified that IAEA would, among
other things, take samples from a "glove box" connected to the
reprocessing facility and perform gamma ray scans of the facility. 
According to IAEA, the procedures were needed to restore IAEA's
continuity of knowledge at the declared sites. 

February 25, 1994

The United States and North Korea issued a statement, entitled
"Agreed Conclusions," which specified, among other things, that the
inspections would proceed consistent with the timing and manner
agreed to between North Korea and IAEA on February 15, 1994.  The
statement also announced U.S./North Korean intentions to begin a
third round of negotiations in March 1994.\8

March 3-14, 1994

IAEA resumed inspections.  The inspectors proceeded without incident
at several locations but encountered problems at the reprocessing
plant, where they were precluded from (1) entering certain portions
of the plant and (2) performing activities--such as taking samples
from reprocessing equipment and conducting a gamma ray scan of the
reprocessing facility--that North Korea had agreed to on February 15,
1994.\9

March 15, 1994

IAEA terminated inspections after North Korea barred the inspectors
from taking samples at key locations in its plutonium reprocessing
plant.  The March 1994 inspection reportedly indicated that North
Korea had (1) resumed construction on the second reprocessing line in
the facility, (2) constructed new connections between the old and new
reprocessing lines, and (3) broken seals on previously tagged
reprocessing equipment. 

March 20, 1994

The United States announced that it would not participate in the
third round of U.S./North Korean high-level negotiations scheduled
for March 1994.  Instead, the United States said it would refer the
results of the aborted IAEA inspection to the United Nations Security
Council for action. 

March 21, 1994

IAEA indicated, once again, that it could no longer ensure that North
Korea's nuclear materials were not being diverted for nonpeaceful
purposes. 

March 30, 1994

The U.S.  Secretary of Defense warned publicly that the United States
intended to stop North Korea from developing a substantial arsenal of
nuclear weapons, even at the cost of another war on the Korean
Peninsula. 

Early April 1994

The United Nations Security Council decided to request that North
Korea allow IAEA to complete its inspections. 

April 4, 1994

President Clinton ordered the establishment of a Senior Policy
Steering Group on Korea to coordinate all aspects of the U.S.  policy
on the nuclear issue on the Korean Peninsula. 

May 3, 1994

President Clinton publicly offered a "hand of friendship" to North
Korea if it pledged not to develop nuclear weapons.  In a speech to
the National Press Club, the U.S.  Secretary of Defense outlined the
two choices available to North Korea:  continue its nuclear program
and face the consequences--including the possibility of war--or drop
the program and accept economic aid and normal relations with the
United States and its allies. 

Mid-May 1994

Workers began removing the spent fuel from the 5-MW(e) reactor in
violation of North Korea's safeguards agreement with IAEA and IAEA's
previous instructions informing North Korea that IAEA inspectors
would need to sample, segregate, and monitor the fuel rods to
preserve evidence of past plutonium production.  North Korea refused
to comply but allowed two inspectors to watch the fuel-removal
process.  IAEA informed North Korea that the removal of fuel without
proper safeguards constituted "a serious violation" of the safeguards
agreement. 

The United States offered to hold the long-deferred third series of
high-level talks to consider the entire range of issues related to
the Korean peninsula, including the economic, diplomatic, and other
benefits that North Korea could receive in return for reversing its
decision to withdraw from the NPT.  The talks were conditioned on
North Korea's willingness to allow IAEA to monitor the refueling
operation and to safeguard the fuel rods already removed. 

May 21, 1994

North Korea agreed to meet with IAEA inspectors to discuss ways to
preserve the fuel rods that North Korea was removing from its 5-MW(e)
reactor in order to permit a future assessment of the reactor's
operating history. 

End of May 1994

North Korea rejected IAEA's proposal for preserving the fuel rods. 
South Korea responded by putting its military on a higher state of
alert. 

May 28, 1994

Following a failure of negotiations aimed at subjecting the refueling
operation to international safeguards, IAEA's Director General
reported to the United Nations Secretary General that the agency was
quickly losing its ability to verify the amount of North Korea's past
production of plutonium. 

May 30, 1994

The President of the United Nations Security Council, on behalf of
the Council members, urged North Korea "to proceed with the discharge
operations at the five megawatt [5-MW(e)] reactor in a manner which
preserves the technical possibility of fuel measurements, in
accordance with IAEA's requirements." In deference to China, the
statement did not include a direct threat of economic sanctions. 

June 3, 1994

IAEA's Director General told the United Nations Security Council that
North Korea had removed all but 1,800 of the 8,000 fuel rods in the
5-MW(e) reactor and that by mixing them up, North Korea had made it
impossible to reconstruct the operating history of the reactor. 

Early June 1994

IAEA members voted to exempt North Korea from receiving IAEA
technical assistance--a benefit accorded IAEA members.  North Korea
responded by quitting IAEA and threatening to expel the IAEA
inspectors.\10

The United States announced that it intended to pursue global
economic sanctions against North Korea if it did not allow IAEA
inspectors to examine the spent fuel rods removed from the 5-MW(e)
reactor in Yongbyon.  North Korea responded that it would treat such
sanctions as an act of war. 

June 5, 1994

The Secretary of Defense confirmed that the United States had built
up its troops in South Korea. 

June 15, 1994

The U.S.  Ambassador to the United Nations announced that the United
States would begin consultations with other countries to implement
sanctions against North Korea. 

June 15-18, 1994

Former President Carter visited Pyongyang, North Korea.  While there,
Kim Il Sung--the North Korean leader at that time--offered to freeze
North Korea's nuclear program in return for the resumption of
high-level talks between the United States and North Korea.  Under
the proposal, IAEA would be allowed to (1) monitor the fuel rods in
the spent fuel pond and (2) engage in some routine monitoring of
North Korea's other nuclear facilities to maintain IAEA's continuity
of safeguards at the sites.  However, the issue of North Korea's past
production of plutonium would be deferred. 

June 21, 1994

The United States offered to (1) resume high-level talks with North
Korea and (2) suspend its efforts to have the United Nations impose
sanctions on North Korea once the talks were under way.  At about the
same time, North Korea took steps to follow up on pledges it had made
to former President Carter.  Specifically, North Korea extended the
visas for IAEA inspectors and proposed a date for a summit with South
Korea. 

June 27, 1994

The United States and North Korea announced that their negotiations
would resume on July 8, 1994. 

July 8-10, 1994

The United States and North Korea began a third round of negotiations
to discuss, among other things, a proposal by the North Korean leader
to freeze North Korea's nuclear program.  The negotiations--held in
Geneva--terminated prematurely because of the death of North Korea's
leader on July 8, 1994. 

August 5-14, 1994

The United States and North Korea resumed the Geneva negotiations
interrupted by the death of Kim Il Sung.  The negotiations reportedly
explored North Korea's willingness to abandon its graphite-moderated
reactors in return for a U.S.  commitment to, among other things,
make arrangements for supplying North Korea with light-water
reactors. 

August 12, 1994

The United States and North Korea issued an "Agreed Statement"
describing "elements [that] should be part of a final resolution of
the nuclear issue" in North Korea, including (1) a freeze on North
Korea's nuclear program in exchange for light-water reactors and
interim energy supplies and (2) movement toward the full
normalization of political and economic relations. 

September 10, 1994

The United States and North Korea held simultaneous working-level
meetings in Berlin and Pyongyang to discuss plans for replacing North
Korea's reactors with light-water reactors and establishing liaison
offices in each other's capitals. 

September 23, 1994

The third round of high-level negotiations between the United States
and North Korea resumed in Geneva. 

October 21, 1994

The United States and North Korea concluded the "Agreed Framework,"
an agreement intended to produce an overall settlement of the nuclear
issue on the Korean Peninsula.  In conjunction, the United States
provided an October 20, 1994, letter from President Clinton to Kim
Jong Il--the Supreme Leader of North Korea.  The letter stated, among
other things, that the President would use "the full powers" of his
office to facilitate the arrangements for the financing and
construction of the light-water reactor project and for the funding
and implementation of interim energy supplies.  (See app.  I for
information about the (1) agreement's content and (2) President's
letter to the Supreme Leader of North Korea.)


--------------------
\1 The following chronology was compiled primarily from Congressional
Research Service reports and briefs and journal articles.  The
chronology is included to describe the key events preceding the
Agreed Framework.  We attempted to reconcile inconsistencies between
the sources; however, we did not independently verify the information
in this appendix.  Further, while the State Department provided
comments on a draft of this report, State did not take a position
about the accuracy of the text. 

\2 The existing 5-MW(e) reactor is thought to be capable of producing
about 7 kilograms of plutonium annually.  When completed, the two
reactors under construction were expected to produce about 200
kilograms of plutonium annually. 

\3 IAEA conducted numerous inspections to verify the completeness of
North Korea's declaration between about mid-1992 and early 1993. 
IAEA inspectors also placed seals and other safeguards on equipment
and buildings at North Korea's declared nuclear sites. 

\4 The move followed South Korea's Apr.  15, 1993, decision to allow
U.S./North Korean negotiations.  (Prior to that time, the United
States and South Korea had insisted upon negotiations between North
and South Korea to resolve the nuclear issue before the United States
would engage in broad, comprehensive talks with North Korea.)

\5 The estimates vary of both the (1) amount of plutonium in North
Korea's possession and (2) number of nuclear weapons that could be
manufactured from the material.  South Korean, Japanese, and Russian
intelligence estimates of the amount of plutonium separated, for
example, are reported to be higher--7 to 22 kilograms, 16 to 24
kilograms, and 20 kilograms, respectively--than the reported U.S. 
estimate of about 12 kilograms.  At least two of the estimates are
said to be based on the assumption that North Korea removed fuel rods
from the 5-MW(e) reactor and subsequently reprocessed the fuel during
slowdowns in the reactor's operations in 1990 and 1991.  The
variations in the estimates about the number of weapons that could be
produced from the material depend on a variety of factors, including
assumptions about (1) North Korea's reprocessing
capabilities--advanced technology yields more material--and (2) the
amount of plutonium it takes to make a nuclear weapon.  Until Jan. 
1994, the Department of Energy (DOE) estimated that 8 kilograms would
be needed to make a small nuclear weapon.  Thus, the United States'
estimate of 12 kilograms could result in one to two bombs.  In
January 1994, however, DOE reduced the estimate of the amount of
plutonium needed to 4 kilograms--enough to make up to three bombs if
the U.S.  estimate is used and up to six bombs if the other estimates
are used. 

\6 See the related discussion under the heading "Late 1993."

\7 At that time, IAEA was expected to report to the United Nations
Security Council that the continuity of its inspections program in
North Korea had completely broken down. 

\8 The agreement concluded working-level talks that had begun in Aug. 
1993. 

\9 According to one source, the access problems occurred in response
to a "log-jam" in the negotiations between the United States and
North Korea.  North Korea allowed the inspections to resume in the
spring of 1994. 

\10 North Korea's withdrawal from IAEA did not affect its obligations
under the NPT. 


THE AGREED FRAMEWORK CAN BE
PROPERLY CHARACTERIZED AS A
NONBINDING POLITICAL AGREEMENT
========================================================= Appendix III

The Case-Zablocki Act of 1972\1 requires the Secretary of State to
transmit to the Congress, for notification rather than approval
purposes, any international agreement--other than a treaty\2 --to
which the United States is a party as soon as practicable after the
agreement has entered into force but no later than 60 days
thereafter.  The act was intended to establish a procedure for
regularly informing the Congress about the foreign affairs activities
of the executive branch.\3 The act specifically authorizes the
Secretary of State to determine if a particular U.S.  undertaking
constitutes an international agreement. 

Neither the Case-Zablocki Act nor its legislative history provides
concrete guidance about which international agreements must be
submitted to the Congress.  Not long after the act's passage, Senator
Case requested the Department of State to clarify the types of
agreements covered by the act.  The State Department replied that the
act "is intended to include every international agreement other than
a treaty brought into force with respect to the United States .  .  . 
regardless of its form, name or designation, or subject matter."\4

In 1981, the State Department issued regulations describing, among
other things, its criteria for assessing whether a U.S.  undertaking
constitutes an international agreement within the context of the
act.\5 According to State's regulations, an undertaking constitutes
an international agreement if (1) the parties to the agreement intend
the undertaking to be legally binding; (2) it involves a
"significant" arrangement or undertaking;\6 (3) the language
describing the undertaking is precise and specific; and (4) it
necessitates the involvement of two or more other parties. 

State's regulations also provide for the consideration of the
agreement's form--specifically, the extent to which a U.S.  agreement
follows the structure, or form, customarily used in international
agreements.  A failure to use the customary form for international
agreements constitutes evidence of the parties' intent not to be
bound by the arrangement.  However, an agreement's form may not be
relevant if the agreement's content and context reveal that the
parties actually intended to create a binding international
agreement.\7

Consistent with State's regulations, several authorities on
international law have suggested that the intent of the countries
involved is the critical factor in determining whether a particular
arrangement establishes either a nonbinding political agreement or a
legally binding international agreement.\8

Because countries are generally reluctant to explicitly state in an
international agreement that the agreement is nonbinding or that it
lacks legal force, inferences about the parties' intent must be drawn
from, among other things, (1) the language used in the agreement; (2)
the subsequent actions or statements of the parties; and (3) the
negotiating history, to the extent that an agreement is ambiguous.\9
Agreements containing general goals or broad declarations of
principles are usually considered too indefinite to create
enforceable obligations.\10

Department of State officials said that both the United States and
North Korea intended the Agreed Framework to be a political
arrangement that would not create binding legal obligations under
international law.  State officials said that the United States
executed a nonbinding political agreement because it would not have
been in the United States' interest to accept an internationally
binding legal obligation to provide nuclear reactors and alternative
energy to North Korea.  Instead, they said that the United States
wanted the flexibility to respond to North Korea's policies and
actions in implementing the Agreed Framework--flexibility that a
binding international agreement, such as a treaty, would not have
provided. 

According to State Department officials, the Department provided the
text of the Agreed Framework to the Congress informally rather than
under the Case-Zablocki Act because it considered the arrangement to
be a nonbinding political agreement that did not meet all of the
criteria established for notifying the Congress.  Specifically,
although the Agreed Framework (1) necessitates the involvement of two
or more parties and (2) involves a significant undertaking, it does
not satisfy State's three other criteria.\11

According to State, its position that the agreement is nonbinding is
supported by (1) the agreement's language and form, which are not
typical of binding international agreements, and (2) the fact that
neither side has since acted in a manner that is inconsistent with
such an understanding.\12

In connection with the language used in the Agreed Framework, State
maintains that the most important indicator of the parties' intent,
concerning the document's legal status, is the choice of the phrase
introducing the document's operative clauses.  Specifically, the
parties used the phrase "decided to take the following actions"
instead of the word "agreed."\13 State says that its treaty experts
carefully chose this language because the word "decided" is routinely
used in connection with nonbinding political agreements (e.g., the
Nuclear Suppliers Group Guidelines, the Missile Technology Control
Regime), whereas the word "agreed" is used before the operative
clauses when the intent is to create a legally binding agreement. 
State also notes that the language of the operative clauses generally
does not create specific commitments, but rather general objectives
toward which the two sides are working.  Such general language is
typical of political agreements.  According to State, the language of
the Agreed Framework was specifically crafted on the basis of the
precedents established in other nonbinding political accords, in a
manner that leaves no ambiguity whatsoever as to the intent of the
two sides to create a nonbinding political agreement. 

While we appreciate State's position, in our view, the language of
the Agreed Framework is not entirely clear about the intent of the
United States and North Korea to establish a nonbinding political
agreement.  Although several of the agreement's provisions
contemplate the need for future agreements,\14 others are expressed
in more concrete and even directive language.  For example, the
Agreed Framework specifies that the United States, through a
consortium, "will make arrangements to offset the energy foregone due
to the freeze of the DPRK's [North Korea's] graphite-moderated
reactors and related facilities, pending completion of the first LWR
[light water reactor] unit." Furthermore, a subsection describing
this responsibility states that "[a]lternative energy will be
provided in the form of heavy oil for heating and electricity
production" and that "[d]eliveries of heavy oil will begin within
three months of the date of [the Agreed Framework] and will reach a
rate of 500,000 tons annually, in accordance with an agreed schedule
of deliveries." Finally, the agreement does not explicitly discuss
the parties' intentions, and we are not aware of anything in the
negotiating history of the agreement that clearly delineates the
parties' intentions.\15

Nevertheless, the Agreed Framework's tone and form, and particularly
the subsequent actions of the United States and North Korea, suggest
that the Agreed Framework was not intended to be a binding
international agreement.  The agreement consists of four general
pledges, all of which are consistent with the kind of broad
declaration of goals and principles that characterize nonbinding
international agreements.\16 Furthermore, as pointed out by the State
Department, the agreement omits provisions that would normally be
included in a binding agreement.  The omitted provisions include a
provision on the agreement's entry into force and the process for
amending the agreement and for resolving disputes. 

The subsequent actions by the United States and North Korea also
suggest that the Agreed Framework was intended to be a nonbinding,
preliminary arrangement.  In a joint press statement on June 13,
1995, at Kuala Lumpur, Malaysia, the two countries reaffirmed their
"political commitments to implement the .  .  .  Agreed Framework."
Although this appears to be a clear expression of the parties'
intent, the statement alone may not be of major significance since it
was made nearly 8 months after the agreement was signed and
communicated informally.  Of greater significance was the conclusion
of two binding international agreements between (1) the United
States, South Korea, and Japan establishing the Korean Peninsula
Energy Development Organization (KEDO) and (2) KEDO and North Korea
for supplying the reactors and alternative energy.\17 Taken together,
these binding international agreements--described in concrete and
specific terms--effectively incorporate the Agreed Framework's
provisions on providing the reactors and alternative energy to North
Korea.\18

In view of the above, we believe that the Agreed Framework can
properly be described as a nonbinding political agreement.  We are
also mindful of the broad authority accorded the executive branch in
the area of foreign affairs\19 and believe that the State
Department's determination that the Agreed Framework is a nonbinding
political agreement is a proper exercise of that authority.  As noted
earlier, the Case-Zablocki Act specifically authorizes the Secretary
of State to determine if a particular U.S.  undertaking constitutes
an international agreement. 


--------------------
\1 U.S.C.  ï¿½ 112b. 

\2 Treaties do not need to be included within the act's coverage
since the U.S.  Constitution requires treaties to be submitted to the
Senate for approval. 

\3 The Senate Foreign Relations Committee described the legislation
as "an effective means of dealing with the prior question of secrecy
and of asserting the obligation of the executive to report its
foreign commitments to Congress." S.  Rep.  No.  591, 92d Cong., 2d
Sess.  5 (1972).  The House Foreign Affairs Committee described the
legislation as "a step toward restoring a proper working relationship
between the Congress and the executive branch in the area of foreign
affairs." H.R.  Rep.  No.  1301, 92d Cong., 2d Sess.  2 (1972). 

\4 Senate Comm.  on Foreign Relations, Treaties, and Other
International Agreements:  The Role of the United States Senate, S. 
Prt.  No.  53, 103rd Cong.,1st Sess.  178 (1993). 

\5 22 C.F.R.  ï¿½181. 

\6 According to the regulations, significant arrangements or
undertakings are those that (1) are of political significance, (2)
involve substantial U.S.  grants or loans, (3) constitute a
substantial commitment of funds that extend beyond a fiscal year or
would be a basis for requesting new appropriations, and (4) involve
continuing and/or substantial cooperation in the conduct of a program
or activity. 

\7 22 C.F.R.  ï¿½181.2. 

\8 1 O'Connell, International Law 205 (2d ed.  1970); Schachter, The
Twilight Existence of Nonbinding International Agreements, 71 Am.  J. 
of Int.  Law 296 (1977). 

\9 Schachter, above, at 296-98; Vienna Convention on the Law of
Treaties, art.  31, 1155 U.N.T.S.  331; Restatement (Third) Foreign
Relations Law of the United States, ï¿½ 325(1), comment a and n.1
(hereinafter, Restatement of Foreign Relations). 

\10 Schachter, above, at 298-99. 

\11 The three other criteria involve assessments about (1) the
parties' intention that the undertaking be legally binding, (2) the
extent to which the language describing the agreement is precise and
specific, and (3) the extent to which an agreement follows the
customary form used for international agreements. 

\12 The Department has used similar nonbinding agreements in the past
to address problems of considerable importance when a legally binding
agreement was thought to be inappropriate, including documents
creating the Nuclear Supplier Group, the Missile Technology Control
Regime, the Australia Group, and the Organization for Security and
Cooperation in Europe, as well as the Helsinki Accords, the Moscow
Declaration of January 1994, and the 1994 Trilateral Statement by the
Presidents of the United States, Russia and the Ukraine. 

\13 The pertinent part of the preamble of the agreement states that
"[t]he United States and the DPRK [North Korea] decided to take the
following actions for the resolution of the nuclear issue."

\14 One example is the United States' pledge to provide the reactors
and interim energy.  The agreement states that the United States will
make its "best efforts to secure the conclusion of a supply contract
with the DPRK [North Korea] within 6 months of the date of the
[Agreed Framework]." Similarly, both parties agreed to hold talks on
the (1) provision of alternative energy, (2) replacement of North
Korea's graphite-moderated reactors with the light-water reactors,
and (3) the storage and ultimate disposal of North Korea's spent fuel
"as soon as possible" after the agreement was signed. 

\15 To our knowledge, there are no documents, side agreements, or
letters written contemporaneous with, or prior to, the Agreed
Framework that would demonstrate that North Korea intended the
agreement to be nonbinding.  State maintains that the agreement
clearly expresses the parties' intent to establish a nonbinding
agreement and that, as a result, there is no need to refer to the
agreement's negotiating history for interpretation. 

\16 App.  I provides information about the agreement, including its
four general pledges. 

\17 The Agreed Framework refers to the KEDO/North Korean agreement as
the "supply contract."

\18 The KEDO and supply agreements did not receive formal
congressional approval.  State submitted the KEDO agreement to the
Congress for notification purposes, as required by the Case-Zablocki
Act.  The supply agreement; however, was not submitted because the
United States is not a party to that agreement. 

\19 United States v.  Curtiss-Wright Export Corp., 299 U.S.  304,
319-20 (1936). 


   IMPACT OF STRUCTURING THE
   AGREED FRAMEWORK AS A
   NONBINDING POLITICAL AGREEMENT
------------------------------------------------------- Appendix III:1

As a nonbinding political agreement, the Agreed Framework's pledges
and agreements are not legally enforceable.\20 Moreover, the Agreed
Framework did not have to be transmitted to the Congress under the
Case-Zablocki Act.  However, given the agreement's political
importance and the fact that most of its provisions have been
incorporated into binding international agreements, the agreement's
broad pledges could have the effect of pressuring the Congress to
appropriate moneys to implement an agreement with which the Congress
had little involvement.\21 Nevertheless, funding for the Agreed
Framework is essentially a congressional matter, and disagreements
about any of its particulars can be expressed through conditions and
limitations on the activity's appropriations.  Indeed, for fiscal
year 1996, the Congress established conditions on the provision of
funds for KEDO that require the President to make certain
determinations about the light-water reactor project and to certify
the determinations in writing to the appropriations committees.\22
The Congress can also enact resolutions or bills expressing its
position on the Agreed Framework and, for areas within its authority,
enact legislation that would supersede the provisions with which it
disagrees.\23


--------------------
\20 President Clinton's October 20, 1994, letter of assurance to the
Supreme Leader of North Korea also is not legally binding.  The
letter offers only the President's pledge to "facilitate
arrangements" for the light-water reactor project and the interim
energy.  Furthermore, the President's more specific pledge to
implement the project and provide interim energy--if not implemented
for reasons beyond North Korea's control--is subject to the approval
of the U.S.  Congress.  (App.  I provides additional information
about the President's letter of assurance.)

\21 The President's letter of assurance of October 20, 1994, might
also have this effect.  See 59 Comp.  Gen.  369, 372 (1980), which
discusses a proposed agreement between the United States and
Australia to indemnify Australia for damages arising from a hurricane
seeding project.  GAO suggested that the proposed agreement could
pressure the Congress to appropriate funds if damage occurred.  See
also Fisher, Congressional Research Service Memorandum on the Agreed
Framework with North Korea 5 (Feb.  8, 1995). 

\22 Pub.  L.  No.  104-107, 110 Stat.  721-22. 

\23 Restatement of Foreign Relations, ï¿½ 303, comment j. 


   IMPACT OF THE AGREED FRAMEWORK
   HAD IT BEEN STRUCTURED AS A
   TREATY OR OTHER BINDING
   INTERNATIONAL AGREEMENT
------------------------------------------------------- Appendix III:2

If the Agreed Framework had been structured as a treaty or some other
form of binding international agreement,\24 it would have been
subjected to greater formal congressional oversight.  Under the U.S. 
Constitution,\25 treaties must be approved by a two-thirds majority
of the Senate.  Such scrutiny could have led to the rejection of the
Agreed Framework,\26 consent with added conditions,\27 or
unconditional consent.  If the Agreed Framework had been considered
another form of binding international agreement, it would have been
subject to the Case-Zablocki Act. 

As a treaty or formal international agreement approved by the United
States and North Korea, the Agreed Framework would have been regarded
as having established legally binding commitments, under both
international and domestic law.  Therefore, it could be subject to
interpretation by U.S.  courts.  However, even if the Agreed
Framework was considered part of the domestic law of the United
States, the Congress could still--within its constitutional
authority--enact legislation superseding the agreement's provisions,
including legislation imposing funding restrictions.\28 For example,
the Congress could choose not to fund the light-water reactor
project, even in the face of a binding international commitment to do
so. 


--------------------
\24 In the United States, such an agreement would be considered an
executive agreement.  The President's authority to conclude these
agreements is based on various provisions in the U.S.  Constitution. 
Restatement of Foreign Relations, ï¿½ 303, comment g. 

\25 U.S.  Const.  art.  II, ï¿½ 2, cl.  2. 

\26 This is more correctly characterized as the Congress's
withholding of its consent, since the actual ratification of a treaty
is a function of the President. 

\27 The Senate cannot amend a treaty or enter reservations to it
itself; however, the Senate can give its consent to a treaty on
condition that the treaty be modified.  Although the President need
not fulfill these conditions, he cannot ratify the treaty unless the
Senate's conditions are met.  Restatement of Foreign Relations, ï¿½
303, n.3. 

\28 Restatement of Foreign Relations, ï¿½ ï¿½ 115; 303, comment j. 


EXISTING AND PLANNED NUCLEAR
LIABILITY PROTECTIONS APPEAR
ADEQUATE
========================================================== Appendix IV

According to KEDO, it places a high priority on protecting the
present and future members of KEDO against the risk of liability for
nuclear incidents that may arise from the light-water reactor project
in North Korea.  As a result, KEDO developed a "comprehensive risk
management program" to protect itself and its member countries from
such risk.  According to KEDO, the foundation of this protective
program is contained in the agreement establishing KEDO (KEDO
agreement) and the agreement between KEDO and North Korea for
supplying the reactors (supply agreement).  Over time, KEDO plans to
negotiate additional protections which, it believes, will fully
shield KEDO and its members from the risk of nuclear liability. 
Among other things, KEDO plans to (1) ensure that KEDO is not
designated the "operator" of the reactors; (2) obtain adequate
indemnity protection and the best insurance coverage available for
both nuclear and conventional risks;\1 (3) obtain widespread
recognition throughout the international community of KEDO's
independent legal status and, consequently, the limited liability of
its members; and (4) provide safe and reliable plants. 

Our analysis of the existing nuclear liability protections confirms
that the foundation of KEDO's protection program is in place.  KEDO
is aware that additional steps need to be taken and, as a result,
plans to build upon the foundation of its existing coverage to fully
shield KEDO and its members from possible liability claims.  Without
knowing the contents of future agreements and contracts between KEDO
and other project participants, it is not possible to fully assess
the adequacy of the liability protections that will be provided to
KEDO and its members.  Nevertheless, our assessment of the liability
provisions in the KEDO and supply agreements and KEDO's plan to
secure additional protections, suggests that KEDO and its
members--including the United States--will be adequately protected
against nuclear damage claims from North Korea and third-party
countries.  Finally, according to KEDO, it will neither ship any fuel
assemblies to North Korea nor allow the reactors to be commissioned
"[u]nless and until KEDO and its members consider that all aspects of
the risk management program are in place."


--------------------
\1 The conventional liabilities are nonnuclear in nature and include
injuries to workers and damage to equipment.  Consistent with the
standard practice of the nuclear industry, KEDO informed us that the
protections against conventional liabilities will be included in its
policies with insurance providers and in its contracts with the Korea
Electric Power Corporation and other contractors and subcontractors. 
Our analysis is limited to the topic of nuclear liability. 


   PROTECTIONS AGAINST NORTH
   KOREAN NUCLEAR CLAIMS APPEAR
   SUFFICIENT
-------------------------------------------------------- Appendix IV:1

The supply and KEDO agreements contain a number of protections that
are intended to preclude North Korea from making claims against KEDO
or KEDO members for damages from a nuclear incident.  The principal
protection requires North Korea to set up a legal mechanism for
satisfying all claims brought within North Korea.  The supply
agreement also contains a provision precluding North Korea from
bringing claims against KEDO for any nuclear damage or loss, and both
the supply and KEDO agreements contain a general
limitation-of-liability provision that appears to cover nuclear
damage. 

The principal protection in the supply agreement requires North Korea
to "ensure that a legal and financial mechanism is available for
satisfying claims brought within North Korea for damages from a
nuclear incident."\2 Consistent with international practice, the
agreement specifies that "[t]he legal mechanism shall include the
channeling of liability in the event of a nuclear incident to the
operator on the basis of absolute liability."\3

In this connection, North Korea must also ensure that the operator--a
North Korean entity--is able to satisfy potential claims for nuclear
damage.\4

North Korea has not yet enacted legislation, referred to as
"channeling legislation," to establish its legal and financial
mechanism for implementing its responsibilities under the Agreed
Framework.  In the next few years, KEDO intends to help North Korea
draft the required legislation and to monitor North Korea's efforts
to establish the financial mechanism for paying possible nuclear
damage claims. 

The supply agreement also contains a second provision that precludes
North Korea from bringing any nuclear damage or loss claims against
KEDO and its contractors and subcontractors.\5 The scope of this
provision is broad and, according to KEDO, covers claims for nuclear
damage caused both before and after the reactors have been turned
over to North Korea.  Third, the supply agreement explicitly states
that North Korea shall seek recovery solely from the property and
assets of KEDO for any claims arising (1) under the supply agreement
or (2) from any actions of KEDO and its contractors and
subcontractors.\6 Correspondingly, the KEDO agreement states that
"[n]o member shall be liable, by reason of its status or
participation as a Member, for acts, omissions, or obligations of the
Organization."\7

Taken together, the described provisions appear to bar North Korea
from making any nuclear claims against KEDO's member
countries--including the United States--in North Korean courts.\8
However, none of the existing provisions explicitly precludes claims
by North Korean nationals or North Korean nongovernmental entities. 
According to KEDO, it intends to ensure that the channelling
legislation, when enacted by North Korea, will protect KEDO and its
members from possible claims from these sources.\9


--------------------
\2 Article XI, section 1 of the supply agreement.  As used in the
supply agreement, a "nuclear incident" is "any occurrence or series
of occurrences having the same origin, which causes nuclear damage."
The definition derives from the Vienna Convention on Civil Liability
for Nuclear Damage, 16197 U.N.T.S.  266-67 (1977). 

\3 The practice of "channeling liability" to the operator of a
nuclear plant is commonly used in the field of nuclear liability. 
The practice requires a nuclear plant operator to assume full
liability for all damage resulting from a nuclear incident.  This
responsibility is consistent with those described in the two
principal international agreements on third-party liability for
nuclear accidents.  Specifically, the Paris Convention of 1960 and
the Vienna Convention of 1963 state that the operator of a nuclear
installation is absolutely liable, regardless of fault, for all
damage caused by a nuclear incident.  In addition to the provision
imposing absolute liability on the operator, the Paris and Vienna
Conventions also contain provisions (1) limiting the amount of the
operator's liability, (2) establishing limited rights of recourse for
operators, (3) requiring operators to maintain insurance or other
financial security covering liability for nuclear damage, and (4)
generally limiting jurisdiction of suits to the courts in the country
where the nuclear incident occurs.  (13706 U.N.T.S.  266-70; 16197
U.N.T.S.  268-72.) The United States, Japan, South Korea, and North
Korea are not parties to these conventions.  Consequently, none are
bound by the conventions' provisions. 

\4 Under article XI, section 5 of the supply agreement, the legal
mechanism may provide a right of recourse for the reactors' operator
if the damage is caused by (1) the gross negligence of the person
suffering the nuclear damage or (2) intentional acts. 

\5 Article XI, section 3, of the supply agreement. 

\6 Article IV, section 10, of the supply agreement. 

\7 Article XIII, section (b), of the KEDO agreement. 

\8 These provisions would also appear to bar North Korea from making
claims outside of North Korea. 

\9 According to the Department of State, the channeling legislation,
when enacted, will preclude North Korea from bringing suits either
inside or outside North Korea. 


   PLANNED PROTECTIONS AGAINST
   NUCLEAR CLAIMS BY THIRD PARTIES
   ALSO APPEAR SUFFICIENT
-------------------------------------------------------- Appendix IV:2

The largest concern of KEDO and KEDO's members may be nuclear damage
claims brought by third parties in courts and tribunals outside of
North Korea.  Unlike the Paris and Vienna Conventions--the principal
international conventions on third-party nuclear liability--which
include provisions limiting the jurisdiction for hearing claims to
the courts in the country where the nuclear incident occurs, the
supply agreement does not preclude claims from being brought in
jurisdictions outside of North Korea.\10

Although there does not appear to be any clear principle of
international customary law governing the extent of a country's
liability for nuclear damage, it is generally recognized that a
country is liable for damage caused to the environment of another
country.\11 Thus, once North Korea assumes control over the reactors,
North Korea and the operator of the reactors would likely become the
primary targets of claims for nuclear damage incurred outside of the
country.  Nevertheless, lawsuits could also be brought against KEDO
and its members.  To help address this possibility, the supply
agreement requires North Korea to (1) enter into an agreement for
indemnifying KEDO and (2) secure nuclear liability insurance or other
financial security to protect KEDO and its contractors and
subcontractors from any third-party claims in any court or forum
resulting from a nuclear incident from the North Korean reactors.\12

Also, as discussed earlier, the KEDO agreement contains a general
limitation-of-liability provision which specifies that KEDO members
are not liable for the actions or obligations of KEDO.\13 This
provision also appears to cover nuclear damage liability for lawsuits
brought outside of North Korea. 

The provision requiring indemnification and insurance is intended to
provide KEDO with adequate protection against suits brought in courts
outside of North Korea.  Even so, as the provision is written, the
indemnity and insurance protections extend only to KEDO and its
contractors and subcontractors, not specifically, to KEDO's
members.\14 Thus, it is not clear that these protections would cover
possible awards by foreign courts against individual KEDO members,
including the United States.  Furthermore, the supply agreement does
not address the extent of the indemnity and insurance protections
that must be obtained, leaving questions about whether North Korea
will be required to indemnify KEDO (1) for the entire amount of any
damage awards obtained in foreign courts or for some fixed, lesser
amount and (2) if North Korea's insurance and other financial
security do not cover all claims. 

In addition to the indemnity and insurance protections that the
United States will have as a member of KEDO, even if a foreign court
entertained a nuclear damage claim against the United States, the
United States could assert the defense of "sovereign immunity"\15 as
a bar to the court's hearing the claim.\16 Moreover, consistent with
choice of law principles, a foreign court could choose to apply North
Korean law in nuclear damage claim actions.  As discussed earlier,
this would be the prospective channeling legislation that, with few
exceptions, would make the North Korean operator absolutely liable
for nuclear damages. 

The issue of whether KEDO's members could be found liable in foreign
courts for KEDO's activities depends, in large part, on whether KEDO
would be recognized as (1) a separate international entity with its
own "legal personality" or (2) an entity of the United States, the
Republic of Korea (South Korea), and Japan--the three original KEDO
members.  If the former, presumably lawsuits would be directed
exclusively against KEDO; but if the latter, lawsuits could be
directed against individual KEDO members. 

According to the International Court of Justice, an international
organization is viewed as having a separate legal personality or
identity from its creators if the organization (1) is capable of
possessing and asserting international rights and duties, (2) has its
own organizational structure, and (3) cannot discharge its functions
without a separate legal identity.\17 In this connection, one
authority on international law has written that when the legal
personality of an international organization is questioned, some of
the issues that must be addressed are whether the organization (1)
was set up by countries for an independent activity related to the
functioning of the international community; (2) has specific
functions that are consistent with the realization of that purpose;
and (3) is independent of the directions of the organization's member
countries.\18

Much of the contents of the KEDO agreement suggest that KEDO was
intended to be an international organization with a separate and
distinct legal personality.  First, the agreement was concluded by
the United States, Japan, and South Korea for the purpose of carrying
out the light-water reactor project--a project arguably of importance
to the international community.  Second, each of the original KEDO
members has equal representation on KEDO's Executive Board--the body
authorized to carry out KEDO's functions--and the agreement
contemplates that additional countries may become members.\19 Third,
the agreement clearly anticipates the involvement of other countries
and international entities to carry out the light-water reactor
project.\20 For example, the agreement authorizes KEDO to (1) receive
funds from other countries; (2) coordinate with public
entities--including countries and national and international
institutions; and (3) conclude agreements, contracts, and other
arrangements with international organizations for the purpose of
implementing the project.  Finally, the agreement

  -- provides that the executive director--KEDO's chief
     administrative officer and his staff--shall (1) "not seek or
     receive instructions from any government or from any other
     authority external to the Organization" and (2) "refrain from
     any action that might reflect on their position as international
     officials responsible only to the Organization;"

  -- calls upon "[e]ach Member .  .  .  to respect the exclusively
     international character of the responsibilities of the Executive
     Director and the
     staff .  .  .  .;" and

  -- confers on KEDO functions that are characteristic of an entity
     with a separate legal personality.  For example, the agreement
     states that KEDO "shall possess legal capacity, and, in
     particular, the capacity to:  (1) contract; (2) lease or rent
     real property; (3) acquire and dispose of personal property; and
     (4) institute legal proceedings."\21

Taken together, the provisions in the KEDO agreement provide strong
support that KEDO is an international organization with separate
legal status.  We reach this conclusion notwithstanding that certain
aspects of the KEDO agreement suggest the contrary.  First, unlike
the work of many international organizations, KEDO's purpose is
specific, intended to be relatively short-lived, and, as reflected in
the Agreed Framework, substantially initiated by one party--the
United States.\22 Moreover, although the supply agreement between
KEDO and North Korea specifically recognizes KEDO as an international
organization with an identity separate from its members, North
Korea--the principal beneficiary of the reactor project--is the only
other party to that agreement.  Furthermore, while other countries
can join KEDO, they cannot become members of KEDO's Executive
Board.\23 And, finally, the KEDO agreement does not state that (1)
KEDO is intended to be an international organization with a separate
legal personality or (2) the agreement is to be governed by
international law.\24

The argument that KEDO could be viewed as essentially a U.S.  entity
is also supported by KEDO's personnel structure.  The KEDO agreement
confers broad authority on KEDO's executive director to carry out
KEDO's activities.\25 The executive director is currently a United
States citizen, and if a replacement is needed, the new executive
director would likely be a United States citizen.\26

Furthermore, U.S.  citizens occupy almost half of the high-level
positions in KEDO's organizational structure.\27 The supply agreement
also specifies that the architectural and engineering firm that KEDO
will use to oversee the light-water reactor project will be a U.S. 
firm.\28

On balance, we believe that the reasons for finding KEDO to be an
international organization with separate and distinct legal status
from its members outweigh the reasons to the contrary.  As a result,
we believe that foreign courts should uphold KEDO's status as an
independent entity and, thus, not allow suits against individual KEDO
members--including the United States.  Nevertheless, we cannot
predict how foreign courts would decide--a caveat that also applies
to the general limitation-of-liability provision in the KEDO
agreement.  As discussed earlier, this provision precludes the
liability of KEDO's members for the actions of KEDO.  However,
foreign courts in those countries that are not bound by the KEDO
agreement could choose not to apply the protection for nuclear damage
claims.\29 This issue could be significant, for example, in suits
brought in the People's Republic of China and Russia--third-party
countries that would appear to be the most likely to suffer damage
from a nuclear incident in North Korea. 

KEDO recognizes that it must build upon the foundation of coverage
already provided in the supply and KEDO agreements to fully shield
itself and its members from possible third-party nuclear liability
claims.  As a result, in a future agreement--termed a
"protocol"--KEDO intends to ensure that the specific indemnity and
insurance protections that it negotiates are also extended to KEDO's
members.\30 In addition, according to KEDO, the protocol will
establish the level of indemnity protection to be provided--an amount
which, at a minimum, will be consistent with international norms.\31
Finally, KEDO plans to negotiate additional liability,
indemnification, and insurance protections in its future contracts
with contractors and subcontractors.  According to KEDO, "[u]nless
and until KEDO and its members consider that all aspects of the risk
management program are in place, KEDO will not ship any fuel
assemblies to the DPRK [North Korea] or allow commissioning of the
LWR [light-water reactor] plants--without which there can be no
possibility of nuclear liability for KEDO, or for its members."


--------------------
\10 Because the supply agreement is an agreement between KEDO and
North Korea, it could not bind third-party countries.  A State
Department official told us that the international community is
currently negotiating a "supplementary funding convention" that will
link the international conventions on nuclear liability.  The
official expects that the supplementary convention will include a
provision limiting jurisdiction for hearing claims to the courts of
the country in which a nuclear reactor is located.  Assuming that
such a provision is enacted and ratified by North Korea, any country
that is a party to this convention and that is damaged by a nuclear
incident in North Korea would have to bring its claims in North
Korea. 

\11 Trail Smelter Case (United States v.  Canada), 3 R.  Int'l.  Arb. 
Awards 1905 (1941); The Corfu Channel Case (United Kingdom v. 
Albania), 1949 I.C.J.  4.  See Oxhorn, The Norms of Nuclear Accidents
after Chernobyl, 8 J.  Nat.  Resources & Envtl.  L.  391-93
(1992-93). 

\12 Article XI, section 2, of the supply agreement. 

\13 Article XIII, section (b), of the KEDO agreement. 

\14 According to the State Department, extending the indemnification
and insurance requirements to KEDO's members would not have been
consistent with KEDO's status as an independent entity.  State
maintains that KEDO's member countries will be adequately protected
from liability by KEDO's independent status, by protections in the
KEDO and supply agreements, and by the defense of sovereign immunity. 
This appendix addresses each of these topics. 

\15 Under the principle of sovereign immunity, a "sovereign"--such as
a country--cannot be sued in its own courts or in any other court
without its consent.  The United States generally considers itself
immune from claims arising out of governmental activities, but not
from those arising from "activities of a kind carried on by private
persons .  .  .  notably commercial activities." Restatement (Third)
Foreign Relations Law of the United States, ï¿½ 451 and 451, comment a
(hereinafter, Restatement of Foreign Relations). 

\16 Even if a foreign court awarded a judgment against the United
States, the United States could assert, either in a foreign or
domestic court, that it should not be enforced.  Restatement of
Foreign Relations, introductory note to pt.  IV, ch.  5, ï¿½ ï¿½ 451,
comment a, 454. 

\17 Reparation for Injuries Suffered in the Service of the United
Nations, 1949 I.C.J.  174, 179; Restatement of Foreign Relations, ï¿½
223. 

\18 1 O'Connell, International Law 98 (2d ed.  1970). 

\19 The United States, Japan, and South Korea each have one member on
KEDO's Executive Board.  Through the end of August 1996, six other
countries--Australia, Canada, Chile, Finland, Indonesia, and New
Zealand--had joined KEDO.  Efforts continue to recruit additional
KEDO members, and according to the State Department, Argentina,
Brazil, and France are expected to become members soon. 

\20 Article III of the KEDO agreement. 

\21 The three provisions are in article VIII of the KEDO agreement. 

\22 According to State, KEDO and KEDO's purpose were defined by the
United States, Japan, and South Korea in the KEDO agreement as well
as through close consultations during negotiations on the Agreed
Framework. 

\23 According to State, KEDO may amend the KEDO agreement to allow
other KEDO members to join KEDO's Executive Board.  Such an amendment
would require the written agreement of KEDO's three original members. 

\24 State says that the charters of many international organizations
do not explicitly state that they are international organizations and
that agreements between states are presumed to be governed by
international law absent a provision to the contrary, 22 C.F.R.  ï¿½
181.2(1). 

\25 Article VIII of the KEDO agreement. 

\26 This is consistent with the understanding in the Agreed Framework
that the "U.S.  will organize under its leadership an international
consortium to finance and supply the light-water reactor project."

\27 The KEDO agreement provides for two deputy executive
directors--one from South Korea and the other from Japan.  Three of
the seven high-level positions below the level of deputy executive
director are occupied by U.S.  citizens.  According to the State
Department, KEDO's personnel structure is consistent with its status
as an international organization, as the top 10 positions (including
the executive director and the two deputy directors) are held by four
United States citizens, three Japanese citizens, and three South
Korean citizens. 

\28 Article IV, section 2, of the supply agreement. 

\29 As a general matter, countries do not have to recognize the legal
personality of an international organization if (1) they are not a
member of the organization, (2) the organization has few members, or
(3) the organization is regional in scope and the country does not
belong to that region.  Restatement of Foreign Relations, ï¿½ 223,
comment e.  To date, we are not aware of any countries--other than
North Korea and the nine current KEDO members, primarily through
their membership in KEDO--that have recognized KEDO's independent
status.  In this regard, the United States has specifically
recognized KEDO as an international organization under the
International Organizations Immunities Act, 22 U.S.C.  ï¿½ 288. 

\30 KEDO expects to begin negotiations on the agreement with North
Korea in early 1997. 

\31 KEDO also plans to negotiate a protection in the protocol that
would specifically prevent North Korea from using the defense of
sovereign immunity to avoid its responsibilities for providing
indemnity and insurance protections.  However, the State Department
considers the additional protection unnecessary because, in its view,
the indemnity and insurance protections required under the supply
agreement will apply regardless of whether North Korea asserts
sovereign immunity in lawsuits in foreign courts. 


   KEDO ALSO PLANS TO ADDRESS
   OTHER SOURCES OF POTENTIAL
   NUCLEAR LIABILITY
-------------------------------------------------------- Appendix IV:3

At least two other sources of potential nuclear liability could
affect the United States as a KEDO member.  These include liability
for nuclear damage occurring before the transfer of the reactors to
North Korea and from nuclear waste disposal activities in North
Korea.\32

First, KEDO is responsible for overseeing the light-water reactor
project prior to transferring the completed reactors to North Korea. 
KEDO's obligations include (1) ensuring that the design, manufacture,
construction, testing, and commissioning of the light-water reactor
plants are done safely and (2) testing the reactors before North
Korea's takeover.\33 KEDO recognizes that a nuclear incident could
occur during the reactors' commissioning and testing period. 
However, it contends that the radiological effects of any discharges
or omissions would be minimal, unlikely to give rise to substantial
claims, and, in all likelihood, limited to North Korea. 

The supply agreement does not specifically deal with nuclear
liabilities arising before the reactors are transferred to North
Korea.  However, as discussed earlier, the agreement prohibits North
Korea from bringing any nuclear damage or loss claims against KEDO--a
prohibition that KEDO and State believe covers such liabilities.\34
KEDO still wants to ensure that it is never the "operator" of the
reactors since it lacks the technical capability to perform the
testing and because it wants to avoid potential liabilities that
could flow to the "operator" under the channeling legislation.  Thus,
KEDO plans to structure the arrangements for the reactors' testing so
that North Korea, a North Korean entity, or a KEDO contractor is the
operator during the testing period.  While the respective views of
these entities is not known, it seems unlikely that another party
would assume the responsibility for testing the reactors without
being compensated by KEDO. 

A second area of potential liability involves the disposal of nuclear
waste.  As specified in the Agreed Framework,\35 North Korea is
primarily responsible for the safe storage and disposal of
radioactive wastes and spent fuel--the by-product of the reactors. 
As a result, in the event of nuclear damage outside of North Korea,
North Korea would likely be the primary target for damage claims. 
However, the agreement also requires KEDO to cooperate with North
Korea to ensure the safe storage and disposition of the light-water
reactors' spent fuel--a role that could expose KEDO and its members
to liability.\36 According to KEDO, its authority under the supply
agreement to require North Korea to relinquish ownership of the
nuclear waste from the light-water reactors and to transport the fuel
out of North Korea, as well as the future agreement between KEDO and
North Korea on the safe disposal of the waste, will allow KEDO to
structure the waste disposal arrangements to avoid any liability on
the part of KEDO.  This protocol is not expected to be negotiated for
several years. 


--------------------
\32 Under Annex 1, section 9, of the supply agreement, KEDO is also
responsible for providing nuclear fuel for the reactors' initial
loading--a responsibility that could expose it to liability if an
accident occurs in transporting the fuel to North Korea.  However,
such an accident is not likely to involve a nuclear liability. 
According to KEDO, it intends to address this potential liability in
its contracts with fuel suppliers and transporters. 

\33 Article X, sections 1 and 2, and Annex 1, section 7, of the
supply agreement. 

\34 Article XI, section 3, of the supply contract.  As discussed
earlier, the scope of the provision is broad and, according to KEDO,
covers claims for nuclear damage both before and after the reactors
have been turned over to North Korea. 

\35 Article X, section 3, of the supply contract. 

\36 Consistent with our earlier discussion, KEDO's members could also
be subject to liability in suits brought in foreign courts. 
Nevertheless, in State's view, cooperation of this kind does not
create such a risk. 


   INFORMATION ON OTHER NUCLEAR
   LIABILITY AND SAFETY-RELATED
   REQUIREMENTS
-------------------------------------------------------- Appendix IV:4

The following sections provide information on other nuclear liability
and safety-related requirements in the supply agreement. 


      NORTH KOREA'S PARTICIPATION
      IN NUCLEAR LIABILITY
      CONVENTIONS AND THE
      ENACTMENT OF LAWS
      ESTABLISHING A NUCLEAR
      LIABILITY REGIME
------------------------------------------------------ Appendix IV:4.1

To the best of our knowledge, North Korea is not currently a party to
any existing international conventions on nuclear liability. 
Furthermore, although the supply agreement requires North Korea to
ensure that a legal and financial mechanism is available for
satisfying nuclear claims brought within North Korea, to our
knowledge, North Korea has not yet (1) established this mechanism nor
(2) enacted domestic legislation on nuclear liability. 


      RESPONSIBILITIES FOR
      MONITORING, VERIFYING, AND
      APPROVING THE SAFE
      OPERATIONS OF THE REACTORS
      AND FOR QUALIFYING PLANT
      OPERATORS
------------------------------------------------------ Appendix IV:4.2

North Korea is responsible for (1) the safe operation and maintenance
of the light-water reactors, (2) ensuring appropriate physical and
environmental protections, and (3) cooperating with KEDO for the safe
storage and disposal of radioactive waste, including spent fuel, in
accordance with a set of codes and standards equivalent to those of
the IAEA and the United States.\37 The supply agreement also requires
North Korea to implement appropriate nuclear regulatory standards and
procedures to ensure the safe operation and maintenance of the
light-water reactors. 

The supply agreement also imposes monitoring and reviewing
responsibilities.\38 Specifically, after the completion of the
light-water reactors, KEDO and North Korea are required to conduct
safety reviews to ensure the reactors' safe operation and
maintenance.  North Korea must provide the necessary assistance to
enable expeditious reviews and give due consideration to the results
of such reviews.\39 In the event of a nuclear emergency or accident,
North Korea must permit immediate access to the site and provide
information to KEDO personnel so that they can determine the extent
of safety concerns and provide safety assistance. 

KEDO must provide a comprehensive training program,\40 including a
full-scope reactor simulator, which is standard nuclear industry
practice.\41 The details of the training program are to be specified
in a future agreement between KEDO and North Korea. 

Consistent with standard nuclear industry practice, KEDO must also
provide any technical support services that KEDO deems necessary for
the operation and maintenance of the light-water reactors for 1 year
after each reactor's completion.  North Korea must provide qualified
operators trained by KEDO to participate in the commissioning of the
reactors. 


--------------------
\37 Article X of the supply agreement.  Also, Article I, section 3. 

\38 Article X of the supply agreement. 

\39 In a separate letter to the supply agreement, dated Dec.  15,
1995, North Korea pledged that the safety reviews would be conducted
on an annual or biennial basis and that the schedule of safety
reviews would be specified in a separate agreement between North
Korea and KEDO before North Korea takes over the first light-water
reactor. 

\40 Article VII and Annex 1 of the supply agreement.  Furthermore, on
Dec.  15, 1995, KEDO agreed to pay the reasonable travel and ground
transportation expenses incurred by North Korean delegations during
training at mutually agreed-on locations outside of North Korea. 

\41 A full-scope reactor simulator is used to train nuclear power
plant operators.  The simulator duplicates the actual plant's control
room, with all the indicators and controls arranged as they appear in
the actual plant.  The simulators also include computer programs
capable of imitating the plant's systems and operations, giving
trainees hands-on experience in operating the nuclear plant. 


      NUCLEAR SAFETY DURING THE
      DESIGN, CONSTRUCTION, AND
      OPERATION OF THE REACTORS
------------------------------------------------------ Appendix IV:4.3

KEDO is responsible for ensuring that the design, manufacture,
construction, testing, and commissioning of the light-water reactors
are in compliance with nuclear safety and regulatory codes and
standards equivalent to those of the IAEA and the United States.\42 A
KEDO official told us that KEDO's contract with the Korea Electric
Power Corporation will obligate the contractor to design and
construct the reactors in compliance with these codes and standards. 

KEDO is also responsible for the design and implementation of a
quality assurance program in accordance with the codes and standards
of the IAEA and the United States.\43 The quality assurance program
must include appropriate procedures for the design, materials,
manufacture and assembly of equipment and components, and quality of
construction.\44 KEDO must also guarantee that the major components
provided by the contractors and subcontractors will be new and free
from defects in design, workmanship, and material for 2 years after
completion, but no longer than 5 years after the date of shipment of
the reactors' major components.  Furthermore, KEDO must guarantee
that the civil construction work for the reactors will be free of
defects in design, workmanship, and material for 2 years after
completion.  Finally, consistent with the nuclear industry's standard
practice, KEDO must guarantee the fuel for the initial loading for
each of the reactors. 

North Korea also has safety responsibilities.  Once KEDO completes
the site survey, North Korea must issue a site takeover certificate
granting KEDO permission to begin the preliminary work at the site. 
Following that--and before beginning the site's excavation--North
Korea's nuclear regulatory authority must issue a construction permit
to KEDO.  The nuclear regulatory authority must also issue a
commissioning permit that is based on its review of the final safety
analysis report before KEDO can load the reactors' fuel.  Finally, to
support North Korea's issuance of an operating permit to the
operator, KEDO must provide the results of the nuclear commissioning
tests and the operator training records to North Korea.\45

Prior to the shipment of any fuel assemblies to North Korea, North
Korea must observe the provisions of several international
conventions--the Convention on Nuclear Safety, the Convention on
Early Notification of a Nuclear Accident, the Convention on
Assistance in Case of a Nuclear Accident or Radiological Emergency,
and the Convention on the Physical Protection of Nuclear Material.\46
Furthermore, North Korea must (1) apply IAEA's safeguards to the
reactors and any nuclear material transferred, used, or produced
pursuant to the supply agreement and (2) provide effective physical
protection, in accordance with international standards, for the
reactors and these nuclear materials.\47


--------------------
\42 Article X of the supply agreement. 

\43 Article VI of the supply agreement. 

\44 KEDO must provide North Korea with appropriate documentation on
the quality assurance program, and North Korea shall have the right
to participate in the implementation of the program.  Details in this
area are expected to be negotiated in a future agreement between KEDO
and North Korea. 

\45 KEDO must provide North Korea with the safety analysis reports
and the necessary information, including information on the codes and
standards, and other documents that KEDO deems necessary for North
Korea to make the required determination. 

\46 Article X of the supply agreement.  The conventions specify the
principles and practices related to the safe operation of nuclear
reactors and related matters. 

\47 Article XIII of the supply agreement. 


AN AGREEMENT FOR COOPERATION IS
NOT YET NEEDED, BUT STATE PLANS TO
NEGOTIATE AN AGREEMENT IF
NECESSARY
=========================================================== Appendix V

The Atomic Energy Act of 1954, as amended, (the act) requires the
United States to execute an agreement for cooperation with a
recipient nation or group of nations before exporting major U.S. 
reactor components or nuclear materials abroad.\1 It is too early to
say whether the United States and North Korea will need to conclude
an agreement for nuclear cooperation because the decisions about
what, if anything, the United States will supply for the reactors
have not yet been made.  These uncertainties are likely to exist
until at least 1997, when arrangements for supplying some of the
equipment may be negotiated.  Nevertheless, an agreement appears
likely because a U.S.  firm currently supplies a major component for
the reactors expected to be supplied to North Korea. 


--------------------
\1 Act of Aug.  30, 1954, 68 Stat.  921.  The act was amended by the
Nuclear Non-Proliferation Act of 1978, Pub.  L.  95-242, 92 Stat. 
120. 


   INFORMATION ABOUT THE REACTORS
   TO BE SUPPLIED TO NORTH KOREA
--------------------------------------------------------- Appendix V:1

The supply agreement between KEDO and North Korea specifies that the
reactors will be the "advanced version of U.S.-origin design and
technology currently under production." The referenced reactor--known
as the Korean standard nuclear power plant--has two coolant loops and
a generating capacity of about 1,000 MW(e).  Reactors of this type
are currently being built at South Korea's Ulchin 3 and Ulchin 4
nuclear plants for the Korea Electric Power Company, the state-run
utility and prime contractor for the light-water reactor project. 

The Korean standard nuclear power plant is based on a U.S.  design
that was transferred to South Korea by Combustion Engineering,
Inc.--a U.S.  company.  Beginning in 1987, Combustion Engineering,
Inc., transferred its "System 80" reactor design technology, such as
its technical documents and computer codes, and has since worked with
South Korea in modifying the reactor's design to meet South Korea's
particular needs, including differences in South Korea's geology and
topography.  The resulting reactor combines Combustion Engineering,
Inc.'s "System 80" technology with several advanced features of the
company's "System 80 +" reactor technology.\2

South Korea manufactures most of the equipment needed for its
reactors.  However, it relies on Combustion Engineering, Inc., to
manufacture and supply a large portion of the equipment for its
reactors' nuclear steam supply system,\3 including reactor coolant
pumps--a major reactor component.  The company supplies its reactor
equipment and technology under subcontracts with South Korean
entities, including the Korea Heavy Industries & Construction Co.,
Ltd., and the Korea Atomic Energy Research Institute. 


--------------------
\2 "System 80" is a licensed U.S.  reactor design used in the three
operating Palo Verde nuclear plants owned by the Arizona Public
Service Co.  "System 80+" is an advanced version of "System 80." The
Nuclear Regulatory Commission (NRC) approved the final design for
"System 80+" in July 1994 and expects to certify the new reactor for
use in the United States soon. 

\3 The nuclear steam supply system is the combination of all systems
needed to produce the steam that drives a reactor's turbine generator
for the production of electricity.  The nuclear steam supply system
includes the reactor, its control and cooling systems, and other
reactor equipment that is intended to prevent or mitigate the
consequences of a nuclear accident.  The remaining equipment in a
nuclear power plant is termed "balance of plant." South Korea
manufactures its nuclear steam supply equipment under licenses with
Combustion Engineering, Inc. 


   AN AGREEMENT FOR COOPERATION IS
   NOT YET NEEDED, BUT STATE PLANS
   TO NEGOTIATE ONE IF IT BECOMES
   NECESSARY
--------------------------------------------------------- Appendix V:2

Section 123 of the act provides that the United States must execute
an agreement for peaceful nuclear cooperation before major reactor
components or nuclear materials may be exported from the United
States.\4 As discussed, Combustion Engineering, Inc., manufactures
and supplies coolant pumps--a major component--for the standard South
Korean reactor.  If South Korea contracts with Combustion
Engineering, Inc., for this component for the North Korean reactors,
an agreement for nuclear cooperation between the United States and
North Korea will be needed. 

Under the act, agreements for cooperation must include the terms,
conditions, duration, nature, and scope of the cooperation.  The act
sets forth nine requirements that must be met in an agreement for
cooperation.\5 Specifically, the cooperating party must agree to

  -- safeguard all transferred items as long as the items remain
     under the control of the cooperating party;

  -- apply full-scope IAEA safeguards;\6

  -- use any items transferred solely for peaceful purposes;

  -- return any transferred items if requested by the United States
     (if the recipient detonates a nuclear explosive device or
     terminates or violates an agreement providing for IAEA's
     safeguards);

  -- transfer any U.S.  nuclear items to a third country only if it
     obtains the prior approval of the United States;

  -- maintain adequate physical security over the transferred items;

  -- provide the United States with a right of consent over
     reprocessing, enrichment, and alteration in form or content;

  -- provide the United States with a right of consent over how
     certain specified nuclear materials will be stored; and

  -- provide the United States with guaranties and consents
     applicable to sensitive nuclear technology.\7

The act requires that any proposed agreement for cooperation be
negotiated by the Secretary of State, with the technical assistance
and concurrence of the Secretary of Energy and in consultation with
the Director of the Arms Control and Disarmament Agency and the NRC. 
The Secretaries of State and Energy are responsible for jointly
submitting the proposed agreement to the President.  The proposed
agreement is to be accompanied by a Nuclear Nonproliferation
Assessment Statement--prepared by the Arms Control and Disarmament
Agency--which, among other things, must analyze the consistency of
the agreement with the act's requirements.\8

If the proposed agreement is approved by the President, the act
requires him to submit the agreement to the appropriate committees of
the Congress, along with a written determination that the proposed
agreement will promote, not constitute an unreasonable risk to, the
country's common defense and security.\9

The need for a future agreement between the United States and North
Korea has not yet been resolved because of uncertainties about
whether the Korea Electric Power Company or other South Korean
nuclear entities, such as the Korea Heavy Industries & Construction
Co., Ltd., will contract with Combustion Engineering, Inc., for the
supply of major reactor components.\10 These uncertainties are likely
to remain until at least the spring of 1997, when Combustion
Engineering, Inc., officials hope to receive a request to supply the
major reactor components for the project.\11 According to these
officials, a request is needed soon because of the long lead
time--about 3 years--for manufacturing the components. 

An agreement for cooperation will be required if Combustion
Engineering, Inc., exports a major reactor component for the project. 
The Department of State is prepared for this possibility and, as part
of the Agreed Framework, has already secured North Korea's commitment
to execute one if it becomes necessary.\12 Specifically, the Agreed
Framework states, "[a]s necessary, the U.S.  and the DPRK [North
Korea] will conclude a bilateral agreement for cooperation in the
field of peaceful uses of nuclear energy."\13

If an agreement is executed, according to State, it would not seek to
waive any of the statutory requirements for an agreement for
cooperation.\14 However, State said that it would need to seek a
waiver of section 129 of the act if a U.S.  company seeks to transfer
major equipment for the light-water reactor project pursuant to an
agreement for cooperation with North Korea.  That section of the act
prohibits U.S.  exports of major reactor components, nuclear
materials, or sensitive nuclear technology to any country--such as
North Korea--that has, among other things, materially violated an
IAEA safeguards agreement.\15 According to State, it will neither
seek to waive section 129 nor bring into force an agreement for
cooperation until North Korea has complied fully with its IAEA
safeguards agreement, as called for in the Agreed Framework.\16 In
connection with an agreement for cooperation, State also noted that
since any transfers of major U.S.  reactor components would not occur
for many years, the United States would have time to assess North
Korea's performance and decide whether an agreement should be
concluded.\17


--------------------
\4 Major components include reactor pressure vessels, reactor coolant
pumps, and complete reactor control rod systems.  Nuclear materials
(fuels) are source materials (including uranium or thorium), special
nuclear material (plutonium, uranium-233, or certain enriched
uranium), and related byproducts. 

\5 The act does not list diplomatic relations as a requirement for an
agreement between the United States and a recipient country. 
However, with respect to the North Korean project, the Agreed
Framework anticipates establishing liaison offices between the
countries in the near future and full diplomatic relations "as
progress is made on issues of concern to each side."

\6 In the early 1960s, IAEA established an inspection program based
on a system of technical measures, referred to as safeguards,
designed to detect the diversion of significant quantities of nuclear
material. 

\7 "Sensitive nuclear technology" involves enrichment, reprocessing,
and heavy water production technologies.  The reactors to be provided
to North Korea do not involve these technologies.  Consequently, this
requirement would not be applicable to this project. 

\8 42 U.S.C., ï¿½ 2153(a). 

\9 The act provides two review periods for congressional
consideration.  The first period lasts for not less than 30 days of a
continuous session of the Congress and contemplates consultation
between the Congress and the President concerning the consistency of
the proposed agreement with statutory requirements.  The second
period is for 60 days of a continuous session of the Congress, during
which specified committees hold hearings and recommend whether the
agreement should be approved or disapproved.  In the past, the two
periods of congressional review routinely have been telescoped into
one 90-day period of continuous session, a practice consistent with
the legislative history of the provision.  If the Congress finds that
the agreement is consistent with the law, it becomes effective after
the expiration of the 90-day period unless the Congress passes, and
enacts, a joint resolution of disapproval.  Agreements that do not
meet all statutory requirements must be submitted with a presidential
exemption for noncomplying provisions and can enter into force only
if the Congress adopts a joint resolution of approval. 

\10 Uncertainties also exist about whether the United States will
supply nuclear materials for the project.  We were unable to
determine when the issue of fuel supply will be resolved. 

\11 The contract between KEDO and the Korea Electric Power Company
for supplying the reactors is not expected until the first quarter of
1997.  Subcontracting supplier arrangements, including a possible
contract to Combustion Engineering, Inc., would be negotiated later. 

\12 According to State, an agreement for cooperation between the
United States and North Korea will also be needed if the United
States exports U.S.  nuclear materials and/or major components for
the project through some third country, such as South Korea. 

\13 Similarly, the supply agreement between KEDO and North Korea
states, "[i]n the event that U.S.  firms will be providing any key
nuclear components, the U.S.  and DPRK [North Korea] will conclude a
bilateral agreement for peaceful nuclear cooperation prior to the
delivery of such components." The agreement also includes numerous
North Korean assurances addressing most of the recipient-country
guarantees required under the act. 

\14 The act allows the President to exempt an agreement for
cooperation from containing any of the nine requirements if he
determines that inclusion of the requirement would be seriously
prejudicial to the achievement of the U.S.  non-proliferation
objectives or otherwise jeopardize the country's common defense and
security.  The President cannot, however, waive the statutory
requirement for an agreement for cooperation. 

\15 Section 129 of the act allows exports that would otherwise be
prohibited if the President determines that the "cessation of such
exports" would seriously prejudice U.S.  nonproliferation objectives
or jeopardize the nation's common defense and security.  If the
President makes such a determination with respect to North Korea, he
must forward the determination and a report to the Congress.  The
determination takes effect unless the Congress, within 60 days of
continuous session, adopts a concurrent resolution disapproving the
determination.  (App.  II provides information about North Korea's
past safeguards violations.)

\16 According to the State Department, it is possible that, for
timing purposes, an agreement would be concluded and submitted to the
Congress for consideration with a condition that the agreement would
not come into force until North Korea has complied fully with its
IAEA safeguards agreement. 

\17 The Agreed Framework specifies that North Korea must "come into
full compliance with its safeguards agreement with the IAEA" after a
significant portion of the project is completed, but before the
delivery of the key nuclear components.  According to the available
estimates, if the project continues, this event will occur in about
4-1/2 years. 


SCOPE AND METHODOLOGY
========================================================== Appendix VI

To determine whether the Agreed Framework is a nonbinding political
arrangement, we reviewed and analyzed the contents of the Agreed
Framework; the agreement establishing KEDO; and the supply agreement
between KEDO and North Korea; relevant U.S.  laws, including the
Case-Zablocki Act and its legislative history; congressional reports
on the act; and State's regulations for assessing when a U.S. 
undertaking constitutes an international agreement under the act.  We
also reviewed and analyzed constitutional requirements for treaties;
the texts of other U.S.  international agreements; reports of
international authorities describing, among other things, the factors
in assessing whether an agreement is nonbinding; the text and
legislative history of the Congress's fiscal year 1996 appropriation
for the North Korean project; and the President's October 20, 1994,
letter of assurance to the Supreme Leader of North Korea. 

In addition, we interviewed cognizant State Department officials to
discuss State's criteria for determining when to structure
international arrangements as treaties, other forms of binding
international agreements or nonbinding political arrangements, and
State's rationale for structuring the Agreed Framework as it did.  We
used information obtained from these sources to evaluate how the
Agreed Framework's structure affects (1) the legal enforceability of
the agreement and (2) congressional oversight.  We also used this
information to assess how these areas would have been affected if the
Agreed Framework had been structured as a binding international
agreement, such as a treaty. 

To determine whether the United States could be held financially
liable for a nuclear accident involving the North Korean light-water
reactors, we reviewed and analyzed the KEDO and supply agreements;
congressional hearings; international conventions on nuclear
liability, including the Paris Convention of 1960 and the Vienna
Convention of 1963; relevant decisions by international, foreign, and
U.S.  courts as well as the views of authorities on international
nuclear liability; documentation describing KEDO's "comprehensive
risk management program;" and evaluations of KEDO and member state
liability, including an assessment by an international authority on
nuclear liability.  We also conducted extensive interviews with
cognizant State and KEDO officials to discuss the adequacy of
existing nuclear liability protections, future actions that could
affect the issue of nuclear liability, and KEDO's plan to secure
additional protections.  Finally, we reviewed State's reply to the
Committee's August 14, 1995, letter to State on this topic and
factored State's responses into our analyses, as appropriate. 

To determine whether the United States is responsible for the cost of
upgrading North Korea's existing power grid, we reviewed and analyzed
the contents of the supply agreement and reports from congressional
hearings related to the issue of the grid upgrades.  We also
interviewed State and KEDO officials about the results of past
negotiations with North Korea on the topic and their positions on who
is responsible for paying for the upgrades. 

Finally, to determine whether the Agreed Framework is being
implemented consistent with the applicable laws governing the
transfer of U.S.  nuclear components, materials, and technology, we
reviewed and analyzed the Agreed Framework; the supply agreement;
applicable U.S.  laws--including the Atomic Energy Act of 1954, as
amended by the Nuclear Non-Proliferation Act of 1978; the related
legislative histories of these acts; relevant regulations governing
the transfers; and KEDO's request for proposals for a technical
support contractor.  We also reviewed and analyzed the authorizations
granted by the Department of Energy (DOE) for transferring U.S. 
reactor technology for the North Korean project, including the U.S. 
companies' requests for the DOE authorization, DOE's analysis of the
requests, and the views of other agencies about the proposed
transfers.  In addition, we reviewed the contents of DOE's
authorizations for U.S.  technology transfers to other countries
requiring a special authorization. 

We also interviewed State and DOE attorneys as well as the official
responsible for administering DOE's process for authorizing U.S. 
technology transfers.  Furthermore, we contacted officials at the
Nuclear Regulatory Commission, KEDO, and Combustion Engineering,
Inc., to obtain their views on possible U.S.  exports for the
project.\1 Finally, we reviewed responses to the Committee's August
14, 1995, and February 1, 1996, letters to State and DOE,
respectively, on this topic and incorporated the agencies' responses
into our analyses, as appropriate. 

As agreed with the office of the Chairman of the Senate Committee on
Energy and Natural Resources, in a subsequent review we will address,
among other things, (1) the status of the implementation of the
Agreed Framework's various provisions, including progress on
bilateral issues of concern between the United States and North
Korea; (2) the costs associated with the agreement; and (3) how
procurements will be handled. 


--------------------
\1 We had also planned to contact the Korea Electric Power
Corporation--the prime contractor for the project--to discuss the
likelihood of U.S.  exports for the project.  However, due in part to
ongoing negotiations between KEDO and the corporation, we were unable
to obtain a contact there. 


MAJOR CONTRIBUTORS TO THIS REPORT
========================================================= Appendix VII

RESOURCES, COMMUNITY, AND ECONOMIC
DEVELOPMENT DIVISION, WASHINGTON,
D.C. 

Gene Aloise, Assistant Director
Kathleen Turner, Evaluator-in-Charge
Mario Zavala, Senior Evaluator
Gregory Mills, Evaluator
Duane G.  Fitzgerald, PhD, Nuclear Engineer

OFFICE OF THE GENERAL COUNSEL

Jackie A.  Goff, Senior Attorney
Richard Seldin, Senior Attorney


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