Analysis of HR 757's Potential Impact on NGO Activities in North Korea

January 14, 2016

On Tuesday, January 12, the U.S. House of Representatives passed HR 757, the North Korea Sanctions Enforcement Act, on a 418-2 vote. The content of the legislation signaled Members' approval for the continued provision of humanitarian assistance to North Korea on the part of U.S. non-governmental organizations (NGOs). However, the bottom line for NGOs is that the bill further constricts the provision of such assistance. The analysis provided below examines the potential impact of HR 757 in its current form on U.S. humanitarian and NGO activities in North Korea.

Section 104(e)(3)(B) of the original bill, which would prohibit any U.S. transactions with the government of North Korea even for humanitarian purposes, had previously been identified as highly problematic for NGOs. However, this Section was removed from the version of the bill that passed the House on Tuesday. Because of this change, HR 757 would not put a stop to private U.S. humanitarian assistance to North Korea as it pertains to shipments of food, agricultural products, medicine, or medical equipment -- so long as the Executive Branch decides to allow exemptions for such activities and authorizes appropriate regulations.

However, there is other problematic or ambiguous language which remains in the bill. 

  • Export control measures would include a "presumption of denial" for the export of anything other than food, medicine, or medical products, which could impact U.S. NGOs that send humanitarian-oriented goods outside of these categories.
  • New regulations requiring a license for transacting in property or services in which the DPRK has an interest could be far-reaching, particularly if interpreted broadly. This could impact the humanitarian-minded NGOs that operate as businesses in North Korea or go beyond merely providing food, medicine, or medical devices. It could also potentially prohibit U.S. persons from providing tourism services or purchasing airline tickets with Air Koryo.
  • Because HR 757 only provides for discretionary (rather than mandatory) humanitarian exemptions, it also conflicts with the more broad exemptions for humanitarian assistance found in the International Emergency Economic Powers Act, and it is unclear how this conflict would be resolved.

Additionally, UN agencies and international NGOs operating in North Korea may indirectly be impacted by the legislation, as foreign banks facilitating financial transactions with North Korea may feel renewed pressure to cease their business with the country.

Much of the legislation's impact would ultimately depend on how the Administration interprets and implements it. If the Treasury Department moves swiftly to issue the appropriate general licenses or interpretative guidance related to approved activities in North Korea, the impact on NGO activities would be reduced. If such guidance is not forthcoming, it may create uncertainty on the part of financial institutions and other businesses (such as shipping or insurance companies) facilitating NGO activities North Korea, leading to delays or complications.

Please note that this analysis should not be construed as legal advice or background. Any American individual, NGO, or other entity operating in North Korea or considering new work in the country should consult with appropriate legal experts and/or officials of relevant U.S. government agencies as to how future sanctions legislation may be of impact.

Special thanks is extended to NCNK Member and Attorney James Min in helping to prepare this analysis.