In the waning months of the Bush administration in 2008, certain changes to U.S. legal and regulatory frameworks were made to facilitate improved U.S. bilateral relations with North Korea. These changes were made in return for Pyongyang's progress on disabling its nuclear facilities and in accordance with the Six-Party talks agreements. Among the most notable were the removal of North Korea from the Trading with the Enemy Act (TWEA) and the rescission of North Korea's designation as a State Sponsor of Terrorism (SST). However, closer examination reveals that these instruments were replaced with new or different legal restrictions which essentially rendered the actions moot.
On the same day that President Bush issued the proclamation terminating the exercise of authority under TWEA with respect to North Korea, he also reauthorized Executive Order 13466. This order characterized North Korea's nuclear activities as an “unusual and extraordinary” threat to U.S. national security, and authorized the continuation of certain restrictions with respect to North Korea and North Korean nationals. Similarly, although the U.S. rescinded North Korea's designation as an SST, the legal restrictions that were applicable under the SST remain in place under the auspices of different laws.
With only symbolic changes to the U.S. legal regime regarding North Korea, the Bush administration left itself vulnerable to charges of duplicity, potentially giving Pyongyang another justification to reject the Six-Party talks. The wide-ranging restrictions placed on North Korea can only mean U.S.-North Korea relations will remain tenuous at best. In order to bring North Korea to negotiations, whether the Six-Party or some other negotiations format, encourage its continued denuclearization, and ultimately put US-North Korean relations on a normal footing, the Obama administration must be willing to make significant changes in the application of U.S. legal sanctions.