For three days, North Korea has refused to accept South Korea‘s request to gain access to an Hyundai Asan employee who has been detained at the Kaesong Industrial Complex for investigation on charges of allegedly criticizing North Korea’s government and inciting a North Korean worker to defect.

In a press briefing on April 1, Lee Jong-joo, vice spokeswoman at the South‘s Ministry of Unification, said the government “understands that the investigation is still underway at North Korea’s immigration operations division for the Kaesong Industrial Complex.” Lee added, “While the management committee for the Kaesong Industrial Complex has asked North Korea about the conditions of the detainee, the officials of North Korea have repeatedly responded with, ‘We will guarantee the detainee’s human rights, health and security.‘”

On March 30, when North Korea detained the Hyundai Asan employee, who is only identified by the letter “O,” North Korea informed South Korea that the detainee would be investigated under the Agreement Regarding Admission and Staying in the Kaesong Industrial Complex. Article 10 of the agreement specifies: When an employee has violated the laws that apply within the zone, North Korea will put a stop to the activities and investigate them, notify South Korea of the particulars of the violation for the individual in question, and depending on the severity of the violation, issue a warning, impose a fine or expel the individual to South Korea. It also says: With regard to what is agreed by South and North Korea to be serious acts of violation, the two parties will confer separately to agree upon a method of handling them.

It’s currently unclear which rule of the two will be applied to the Hyundai Asan employee. If the first rule is applied, North Korea may deport the Hyundai Asan worker to South Korea. However, things may become more complicated because the South Korean worker currently faces allegations of “denouncing the regime” and “instigating defection.”

An official at the Ministry of Unification has said, “No matter what, the agreement specifies that North Korea cannot punish the accused on its own without an agreement between South and North Korea.” He also added, “Since North Korea has notified us that the investigation is taking place in accordance with the agreement, the likelihood is low for North Korea to unilaterally take the detainee to Pyongyang and apply its own judicial system.” The remarks from the official can be interpreted as indicating that this case is different from that of the two detained U.S. journalists who are in the process of being indicted through North Korea‘s judicial system because there currently is no diplomatic understanding in place on such matters between North Korea and the United States.

Experts, however, suggest the situation is complicated as investigative procedures, such as government officials’ rights to access detainee, were not specified in the Agreement. Article 3 of the agreement between North Korea and South Korea only states, “Basic rights should be guaranteed during an investigation.” Based on the provision, South Korea has called on North Korea to accept South Korea‘s request to see the detainee, however, North Korea is currently refusing the request. With regard to this discord, spokeswoman Lee said, “The interpretation of the agreement should be made in consultation between South and North Korea.”

Kim Geun-sik, a professor of politics and diplomacy at Kyungnam University, says, “Regardless of the agreement, South Korea needs confirm the safety of the detainee. The North needs to be flexible on this as it influences the future development of the Kaesong Industrial Complex.”

Please direct questions or comments to [englishhani@hani.co.kr]