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August 4, 2015

The family of a South Korean man believed killed in North Korea are trying to seize a Pyongyang-owned vessel being held in Mexico, in a new sign of how legal snares are complicating the regime’s international trade.

Kim Dong-sik, a 53-year-old pastor, was abducted by North Korean agents in China in 2000 and can be presumed dead, a US court ruled in April. It ruled that Pyongyang should pay $330m to Mr Kim’s family, who are US citizens.

The family have seen an opportunity to secure a first installment of this sum, in the form of the Mudubong, a North Korean cargo ship held by Mexican authorities since colliding with a coral reef last July.

On Tuesday their lawyers vowed to appeal after a Mexican court declined to consider their petition to place a lien on the Mudubong, which would give them the legal right to seize it. The court ruled on Monday that the case did not fall under its jurisdiction.

“We want to get the boat into our hands and sell it, and put the money towards the judgment against North Korea,” said Nitsana Darshan-Leitner, the family’s lead lawyer, who represented the family in the successful US action and who has previously won cases resulting in the seizure of Iranian-owned assets in the US.

Some legal experts consider the move a long shot, given that the US ruling would first have to be recognised in Mexico — an opinion seemingly endorsed by the Mexican court’s initial ruling. However, Alberto Mansur, the lawyer representing the family in Mexico, maintains that the case is on firm ground.

“This has never been done when the defendant is a sovereign nation but the recognition procedure is pretty straightforward,” he said.

The North Korean embassy would be the defendant in the case, he said. “Our laws provide for the attachment of assets when enforcing a claim,” Mr Mansur added.

The lawsuit brings a new twist in an affair that reflects the complexity of efforts to implement UN sanctions against Pyongyang. Two weeks after the Mudubong ran aground off the Mexican coast, the UN Security Council and US Treasury issued new sanctions against Ocean Maritime Management, which was accused of involvement in illicit arms trading. OMM is the Mudubong’s ultimate owner, according to a panel of experts appointed by the Security Council.

In an attempt to sidestep this measure, the panel of experts reported in February, North Korea has attempted to conceal the fact that OMM controls Mudubong. The registered owner, Mudubong Shipping Company, was quoted by North Korean media in May as saying: “Our company is a corporate body independent of [OMM] . . . There is . . . neither reason nor ground . . . to make the ship subject to ‘sanctions’.”

But the experts’ report said they still considered the Mudubong an asset of OMM, and had conveyed this to Mexico’s government. The report criticised weak implementation of sanctions against OMM, with at least six nations inspecting OMM vessels but failing to impound the ships.

“The Security Council confirmed on May 6 the Mexican government’s obligation to continue freezing the Mudubong. Mexico will continue to abide by this decision for as long as it is not modified or withdrawn by the Security Council,” the Mexican foreign ministry said in an emailed response to questions.

The ministry did not respond to a question about what it planned to do with the ship.

Mr Mansur noted the precedent of Ghana’s 2012 seizure of an Argentine naval vessel, as part of a campaign by US hedge fund Elliott Management over Buenos Aires’s default on debt. That ship was returned to Argentina, after the UN’s International Tribunal for the Law of the Sea agreed with Buenos Aires’s argument that impounding the naval training vessel and its roughly 300 crew violated the immunity of military vessels under international maritime law.

However, Mr Mansur said North Korea’s claim to the ship was unlikely to be protected by international rules on sovereign immunity because these did not apply in cases of gross human rights violations.

“I think the immunity of sovereign nations has been eroded in the last 10 or 20 years,” he said. “Rogue countries like North Korea have to be answerable to somebody. They can’t torture and kidnap with impunity. I think the nations around the world have come to realise that.”

He said a 2004 UN convention, signed but not ratified by Mexico and not yet in force, listed cargo ships as assets which could be seized.

The direct implementation of sanctions against North Korea is not a new phenomenon. In 2013 Panamanian authorities confiscated weapons that had been hidden beneath bags of sugar on a North Korean ship returning from Cuba, which had sent them to North Korea for repairs. In 2009 authorities in South Africa, Thailand and the United Arab Emirates blocked attempted arms exports by North Korea.

But such examples of successful sanction implementation have had only a marginal impact on North Korean trade, which remains driven by China, said Andrei Lankov at Kookmin University in Seoul.

“Five or six years ago, some hardliners said the sanctions were beginning to bite,” he said. “What did we see? Economic growth, with a restaurant boom in Pyongyang, and minor traffic jams.”