The Leap Day Deal: A Cautionary Tale for the Trump Administration

The past few days have been filled with reports that North Korea is rebuilding partially dismantled facilities at the Sohae Satellite Launching Station (Tongchang-ri) and speculation that it might be preparing to renew testing of intercontinental ballistic missiles (ICBMs). There is no evidence to suggest that Pyongyang is planning to launch anything yet based on available commercial satellite imagery. But of course, that possibility cannot be ruled out.

Launching a genuine ICBM from Sohae would not only be unwise but risky. First, the result would be international condemnation, including from the Chinese and Russians. Second, why would North Korea launch an ICBM from a fixed pad that the whole world is watching when it could conduct a test from a mobile launcher somewhere else? It’s very unlikely but a launch from Sohae would at least open up the possibility of destroying the missile either on the pad or in flight.

There is a potential scenario that might be plausible if the North is planning to launch a rocket. Pyongyang has been firing satellites into space on top space launch vehicles (SLVs) from Sohae since it became operational in 2011. And it was just such a launch in April 2012 that upended the Obama administration’s “Leap Day Deal” with Pyongyang concluded just weeks prior that provided for a moratorium on ballistic missile and nuclear testing as well as shutting down its Yongbyon nuclear facility in return for a few hundred thousand tons of food aid.

Contrary to the Obama administration’s public assertions, however, the North Koreans never agreed that the ban on missile testing included space launch vehicles. US negotiators repeatedly tried to nail down their agreement suggesting different formulations and even a confidential minute that wouldn’t have to be made public. But the North Koreans held fast. The most they would do was acknowledge the US position that the agreement would collapse if Pyongyang fired a rocket into space. It was, in effect, a unilateral assertion by the United States.

Understanding the risk, Washington decided to go ahead anyway. Compounding the problem, the Obama administration did not want the deal recorded in a single agreed document since it thought that would result in an endless wordsmithing exercise with the North Koreans. Rather, each country agreed to issue separate statements. As one key Obama administration official later recalled, the deal was a “gentleman’s agreement” intended to test whether the North was sincere or not in its negotiations with the United States. The rest of what happened is history; the North Koreans stuck to their position, launched a space launch vehicle in April and the Leap Day Deal collapsed.

How is this historical chapter relevant today? It came as a big surprise to many North Korean experts when Kim Jong Un announced last spring that he was willing to dismantle his space launch facility, started that process and even said he would allow inspectors to watch. Pyongyang has had a serious space program for years, which also no doubt helped in the development of long-range missiles. Announcing that Sohae was on the auction block meant the North was willing to close that loophole, an unexpected unilateral concession. However, with the rebuilding of facilities at the space launch center, Pyongyang may be on the verge of reversing that decision and once again opening the loophole.

That’s important in the months ahead. Some experts have claimed that developments at Sohae indicate that the North is on the verge of testing an ICBM. It may turn out to be a distinction without a difference but here’s a much more likely scenario, though not a prediction about what will happen. If Pyongyang does decide to conduct a launch, it will be a space launch vehicle and probably one carrying a satellite. That will at least give the North some political cover. While UN sanctions against North Korea prohibit such launches, Pyongyang may believe it has at least one leg to stand on and assert the right of “peaceful space exploration” enjoyed by the international community. That may have some resonance in Beijing and Moscow, both of whom are likely to be looking for a way out of a new crisis. And it would certainly be better than a flat-out test of one of the North’s true ICBMs.

Nonetheless, such a test could well trigger a negative US response. But how much a test actually contributes to the further development of the North’s ICBM threat to the United States depends on what is tested. According to Mike Elleman, a contributor to 38 North, there are four possible scenarios:

• A launch of the standard Unha that wouldn’t contribute much to ICBM development since Pyongyang has learned everything it can learn from that SLV from previous tests;
• A launch of a new SLV using the more powerful engines found on the Hwasong family of ICBMs that would benefit the development of its long-range missiles;
• A launch of a new SLV using the first stage of the Hwasong-15 ICBM that would allow Pyongyang to acquire performance data directly applicable to further ICBM development; or
• The North could plan a failed satellite launch with something akin to a re-entry vehicle descending from the third stage of the SLV to covertly perfect a design.

One last observation: Kim Jong Un certainly remembers the April 2012 Unha launch since he made the decision to go ahead with it on the 100th anniversary of Kim Il Sung’s birth under the guise of peaceful space exploration despite American warnings.

He might take a page out of his own historical playbook now that President Trump embarrassed him in Hanoi. Kim could use a launch to demonstrate at the 14th Supreme People’s Assembly, probably in mid-April, that he has not been cowed by sanctions. To top it off, Kim may come back to the Trump administration just as he did after the April 2012 launch and say, “let’s make a deal.” The Obama administration turned him down and moved forward with new sanctions. Whether President Trump would take him up on such an offer is anyone’s guess.