Tag Archive | "North Korea"

North Korea: Nuclear Tests, Threats, & Missile Launches

“Perpetual peace is guaranteed by no less an authority than the great artist Nature herself.” – Immanuel Kant[1]

Source: South Korea’s Defense Ministry

Is there still hope for peace as North Korea advances its nuclear agenda? As the Second World War ended, the US and the Soviet Union divided Korea in half and the Korean War deepened the divide.[2] Today, North Korea is accelerating the development of its nuclear program.[3] Its motivation for testing is “rooted in a desire for political autonomy, national prestige and military strength.”[4] This article aims to answer: How does North Korea’s nuclear program work and what is involved in U.S. defense? How has the international community responded to North Korea’s tests and threats? What legal arguments can we make regarding North Korea’s recent actions? And should we proceed militarily or diplomatically?

A Recent Timeline

In July 2017, North Korea successfully tested an inter-continental ballistic missile (“ICBM”), which appeared capable of hitting Alaska and Hawaii.[5] Then, North Korea tested a missile capable of hitting California.[6] In response to these ballistic missile tests, the United Nations Security Council adopted sanctions against North Korea.[7]

By August, President Trump threatened North Korea with “fire and fury like the world has never seen.”[8] Kim Jong-un, North Korea’s leader, responded with a threat of an “enveloping fire” around Guam, an American territory in the Western Pacific.[9] Trump then claimed his “fire and fury” statement was not enough.[10] He further stated that if North Korea acts “unwisely,” the US military is “locked and loaded.”[11]

Although North Korea did not fire a missile over Guam, North Korea did conduct a ballistic missile test over the northern island of Hokkaido at the end of August.[12] In the first week of September, North Korea carried out its sixth nuclear test, which it claims is a hydrogen bomb that could be attached to an ICBM.[13] After the test, Nikki Haley, U.S. Ambassador to the United Nations told the Security Council, Kim Jong-un is “begging for war.”[14]

Addressing the U.N. General Assembly, President Trump vowed to “totally destroy North Korea” if it threatened the United States.[15] In a public statement responding to Trump, Mr. Kim vowed to take the “highest level of hardline countermeasure in history.”[16] President Trump told Secretary of State Tillerson that talking with North Korea is a waste of time.[17] Trump later emphasized, “only one thing will work.”[18] This October, North Korea’s deputy UN ambassador warned that the Korean Peninsula “has reached the touch-and-go point and a nuclear war may break out any moment.”[19]

A Breakdown of the North Korean ICBM and U.S. Interceptors

There are 4 main kinds of missiles: short range, medium range, intermediate, and ICBM.[20] For an ICBM to reach its desired destination, it needs to go beyond the atmosphere and then come back down.[21] North Korea’s second ICBM test appeared to have the potential to reach the West Coast, and potentially Denver and Chicago.[22] While North Korea’s main engine is its most reliable model to date, its main challenge is avoiding a burnt nuclear warhead before it hits the atmosphere.[23] To overcome that challenge, North Korea needs a reentry vehicle that acts like a shield.[24] However, manufacturing defects could cause the warhead to go off course.[25]

Nevertheless, the U.S. believes North Korea has created a warhead small enough to fit on the ICBM, ensuring a longer range.[26] Further, analysis reveals that North Korea’s latest underground nuclear test suggests a “two-stage thermonuclear” bomb larger than those dropped on Hiroshima and Nagasaki.[27] Nuclear weapons “depend on the splitting apart, or fission, of atoms for their explosive power.” That splitting apart is just the beginning for thermonuclear weapons.[28]

To intercept an ICBM, the U.S. would need censors to track the warheads, launchers to fire interceptors, and missiles that can destroy the warheads.[29] The U.S. has two main types of defense: theater, which is regional, and homeland defense.[30] The former involves Terminal High-Altitude Area Defense (THAAD) in Guam and South Korea along with 19 U.S. warships in the Pacific.[31] While these are good for short or medium range missiles, U.S. interceptors have not had a consistent success rate concerning target missiles.[32] When a nuclear warhead separates from a missile in space, it becomes difficult to distinguish it from debris or potential decoys.[33] Therefore, there is reason to worry about the interceptors used for U.S. homeland defense.

International Responses  

While most of the hope for North Korea to terminate its nuclear program by Trump and his predecessors has been in China, their hope is based on three unfounded assumptions. First, their hope assumes outside influence could persuade North Korea to abandon its nuclear weapons.[34] Second, China could exercise such an influence.[35] Third, China will influence North Korea once China is properly persuaded.[36]

What can China do? According to John Delury, a professor at Yonsei University in Seoul, China can keep decreasing its trade and investment relations with North Korea.[37] However, such actions will not break Kim Jong-un because “the North Korean system is especially good at…absorbing pain.”[38] Moreover, sanctions by China have either made little change or backfired, leading to embarrassment for China.[39] China is in a delicate position with the risk of war at its border, the arrival of American troops at its doorstep, and the flooding of North Korean refugees into its mainland.[40] At this point, China says it will close business joint ventures with North Korea, in line with the latest United Nations sanctions.[41]

Japan and South Korea have differing views on how to deal with North Korea. Japan’s Prime Minister Shinzo Abe deemed North Korea’s missile launch over Japan’s territory as “reckless” and a “serious and grave threat.”[42] Japan and the U.S. plan to work together to increase pressure on North Korea.[43] Meanwhile, South Korean President Moon Jae-in is firmly against a military strike on North Korea.[44] He argues that diplomacy and economic sanctions are the means to stop North Korea’s nuclear advancement.[45] Paik Hak-soon, a senior analyst at the Sejong Institute, a think tank south of Seoul, states that a nuclear South Korea is “politically untenable.”[46] While South Korea is afraid the North will use its nuclear program to divide the U.S. and its regional allies, the U.S. has signaled that South Korea is safe under their “nuclear umbrella.”[47]

Russia is at odds with Germany and France about sanctions on North Korea. Vladimir Putin is unconvinced of the effect of sanctions, claiming North Korea would “eat grass” before giving up their nuclear program.[48] However, the United States did manage to compromise with Russia before imposing the new set of sanctions on North Korea.[49] The sanctions limit crude and refined oil exports to North Korea, limit prohibited and refined petroleum sales, and ban all North Korean textile exports.[50]

German Chancellor Angela Merkel along with President Emannuel Macron of France put out a statement supporting stronger European Union sanctions against North Korea after its latest nuclear test.[51] Merkel is prepared to play a role in a diplomatic initiative, suggesting the Iran nuclear agreement could provide a model.[52] She emphasized, “A new arms race starting in the region would not be in anyone’s interests.”[53]

The Non-Proliferation Treaty

Non-Proliferation Treaty Objectives

The objective of the Treaty on the Non-Proliferation of Nuclear Weapons (“NPT”) is to “prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy and to further the goal of achieving nuclear disarmament and general and complete disarmament.”[54] The NPT prohibits non-nuclear weapon state parties from developing nuclear weapons.[55] While the five de jure nuclear weapons states (France, China, Russia, United States, and United Kingdom) are exempted from this prohibition, Article VI requires them to eventually disarm.[56] While India, Israel, and Pakistan are considered de facto nuclear weapon states, they are not party to the NPT. Uniquely, North Korea withdrew from the NPT in 2003.[57] The question remains: did North Korea violate international law by withdrawing from the NPT?

Pacta Sunt Servanda

The first possibility is that North Korea violated the principle laid out in Article 26 of the Vienna Convention on the Law of Treaties (“VCLT”).[58] Article 26 requires states to carry out their international treaty obligations in good faith under the principle of pacta sunt servanda.[59] However, a state can only really be bound to an international treaty if it consents. North Korea has left the NPT, which could mean that it no longer consents to stop developing its nuclear program.

Procedure for NPT Withdrawal

The second possibility is that North Korea violated a procedural obligation of the NPT such as the obligation laid out in Article X.[60] States have a sovereign right to withdraw from the NPT.[61] However, for a State to withdraw, it must give three-months advance notice to all other parties to the Treaty and the UN Security Council.[62] The State must also include “a statement of extraordinary events it regards as having jeopardized its supreme interests” and requiring it to withdraw.[63] North Korea did put out a public statement of withdrawal noting, “[u]nder the grave situation where our state’s supreme interests are most seriously threatened, the D.P.R.K. government adopts the following decisions to protect the sovereignty of the country and the nation and their right to existence and dignity.”[64] Further, claims brought to the International Court of Justice (“ICJ”) are rarely brought on procedure alone. North Korea did mention in the statement that they had “no intention to produce nuclear weapons” or use nuclear energy beyond “peaceful purposes.”[65]

Estoppel

The third possibility is an estoppel argument, which falls under general principles of law. Article 38(1)(c) of the ICJ’s Statute recognizes general principles as a secondary source of law and applies these principles when the law is not clear.[66] These principles are legal norms that include equity, estoppel, and laches.[67] Estoppel requires a State to act consistently in its representation of a factual or legal issue. However, in its Serbian Loans case, the ICJ’s predecessor stated that a State’s prior statements or acts could only be held against the State if they were “clear and unequivocal.”[68] North Korea has conducted six nuclear tests since its public withdrawal and intent not to produce nuclear weapons. While estoppel appears to be the winning argument for a North Korean violation of international law, estoppel is a secondary source of law and a gap-filler argument. Moreover, another State would have to argue that they relied upon North Korea’s inconsistent acts and accordingly suffered an injury.

Does North Korea Have Obligations to De-Nuclearize outside the NPT?

Customary International Law

There may be other ways to claim that North Korea violated international obligations concerning nuclear weapons, such as obligations under customary international law. Customary international law is binding on all States, formed through widespread and consistent state practice, coupled with opinio juris.[69]

State practice is the physical and verbal acts of States acting in conformity, or not, with a particular norm.[70] State practice must be “extensive and virtually uniform” and include states whose interests would be “specially affected.”[71] Specially affected states, that is the nuclear weapons states, have not acted in conformity with the norm of disarming. Specifically, the United States and Russia have only slightly decreased their stockpiles.[72] Further, according to the ICJ, the NPT does not establish a new rule of customary international law prohibiting the use of nuclear weapons.[73]

Opinio juris is a state’s belief that it has a legal obligation.[74] None of the nuclear weapons states signed the now in force Treaty on the Prohibition of Nuclear Weapons, evincing that these states do not believe they have a legal obligation to completely disarm.[75] Further evidence of a lack of opinio juris includes a statement by France, the United States, and the United Kingdom, which declares, “this treaty [banning nuclear weapons] offers no solution to the grave threat posed by North Korea’s nuclear program, nor does it address other security challenges that make nuclear deterrence necessary.”[76] While the NPT demonstrates an attempt to move towards disarmament and non-proliferation, little evidence supports corresponding customary international law.

Under customary laws of war, jus ad bellum governs conditions in which a State may resort to force.[77] Under jus ad bellum, there is a paradigm called international humanitarian law.[78] A key principle under international humanitarian law is distinction, which requires states to distinguish between legitimate military targets and those who have civilian status.[79] In its advisory opinion, the ICJ noted that mines and chemical weapons inherently violate international humanitarian law.[80] However, the ICJ ultimately concluded that it could not rule out the lawfulness of the use of a nuclear weapon in “extreme circumstances of self defense.”[81] While advisory opinions are not binding, the ICJ opened the door for states to justify their use of atom bombs.[82]

The United Nations Charter: Article 2(4) 

North Korea may have violated the UN Charter. Article 2(4) of the Charter requires states to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”[83] This prohibition is viewed by the international community as an inherent obligation on all States.[84] North Korea’s nuclear tests, missile launches, and verbal threats to launch an armed ICBM aimed at the continental U.S. could constitute a violation of this prohibition. The only exceptions to this prohibition are self-defense and Security Council authorization, which appear to be a hard sell for North Korea after its recent surge in tests and threats.[85]

What Happens Next, a Military Option or Diplomacy?

A military option, or a pre-emptive U.S. strike against North Korea would have devastating consequences. First, the casualties would be in the hundreds of thousands, even millions.[86] Japanese citizens and 10 million South Korean residents are directly in the range of North Korea’s missiles.[87] In addition, 28,000 U.S. servicemen are based in South Korea. Second, the U.S. could risk its alliances with Japan and South Korea.[88] Third, the U.S. could ruin its delicate relationship with China.[89]

Since the risks of a military option are exceedingly high in comparison to the limited benefits, diplomacy may offer the strongest way through increased nuclear action by North Korea. For Former Ambassador to the United Nations and Former National Security Advisor, Susan Rice, just as we practiced tolerance during the Cold War, we can do so again today.[90] Further, negotiation and patience, according to Dr. John Nilsson, Senior Research Fellow for the Chatham House Northeast Asia, Asia Program, are the means to alert North Korea of “the costs of further provocations” and “the potential gains to be reali[z]ed through moderation.”[91] In line with Nilsson’s view, U.S. Defense Secretary Jim Mattis noted “we are never out of diplomatic solutions.”[92] On the other hand, for Trump, after the North Korea’s latest nuclear test, “all options are on the table.”[93]

In 1795, Kant furnished the idea that our objective is peace and that as the world evolves we are progressing towards it. If we aim to de-nuclearize North Korea through non-military means as Rice suggests, we can move one step closer to realizing that goal.

 

Meera Nayak is a staff editor on the Denver Journal of International Law & Policy.

___________________________________________________________________________________________________________________________________

[1] Immanuel Kant, Perpetual Peace: A Philosophical Sketch 108 (1795).

[2] BBC, North Korea: What can the outside world do?, BBC (July 4, 2017), http://www.bbc.com/news/world-asia-39216803.

[3] BBC, North Korea crisis in 300 words, BBC (Sep. 5, 2017), http://www.bbc.com/news/world-asia-40871848.

[4] Dr. Nilsson-Wright, North Korea’s nuclear tests: How should Trump respond?, BBC (Sep. 3, 2017), http://www.bbc.com/news/world-asia-41143589.

[5] Chloe Sang-Hun, U.S. Confirms North Korea Fired Intercontinental Ballistic Missile, N.Y. Times (July 4, 2017), https://www.nytimes.com/2017/07/04/world/asia/north-korea-missile-test-icbm.html.

[6] David E. Sanger et al., North Korea Tests a Ballistic Missile That Experts Say Could Hit California, N.Y. Times (July 28, 2017), https://www.nytimes.com/2017/07/28/world/asia/north-korea-ballistic-missile.html.

[7] CNN, North Korea Nuclear Timeline Fast Facts, CNN (Sep. 4, 2017), http://www.cnn.com/2013/10/29/world/asia/north-korea-nuclear-timeline—fast-facts/index.html.

[8] Peter Baker & Chloe Sang-Hun, Trump Threatens ‘Fire and Fury’ Against North Korea if It Endangers U.S., N.Y. Times (Aug. 8, 2017), https://www.nytimes.com/2017/08/08/world/asia/north-korea-un-sanctions-nuclear-missile-united-nations.html.

[9] Chloe Sang-Hun, North Korea Says It Might Fire Missiles Into Waters Near Guam, N.Y. Times (Aug. 9, 2017), https://www.nytimes.com/2017/08/09/world/asia/north-korea-missiles-guam.html.

[10] Peter Baker, Trump Doubles Down on Threats Against North Korea as Nuclear Tensions Escalate, N.Y. Times (Aug. 10, 2017), https://www.nytimes.com/2017/08/10/world/asia/north-korea-trump.html.

[11] Peter Baker, Trump Says Military Is ‘Locked and Loaded’ and North Korea Will ‘Regret’ Threats, N.Y. Times (Aug. 11, 2017), https://www.nytimes.com/2017/08/11/world/asia/trump-north-korea-locked-and-loaded.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=a-lede-package-region&region=top-news&WT.nav=top-news.

[12] Chloe Sang-Hun & David E. Sanger, North Korea Fires Missile Over Japan, N.Y. Times (Aug. 28, 2017), https://www.nytimes.com/2017/08/28/world/asia/north-korea-missile.html.

[13] Arshad Mohammed & Phil Stewart, Trump may have to settle for deterring, not disarming, North Korea, REUTERS (Sep. 7, 2017), https://www.reuters.com/article/us-northkorea-missiles-deterrence/trump-may-have-to-settle-for-deterring-not-disarming-north-korea-idUSKCN1BI2RO.

[14] Scott Neuman, U.S. Says North Korea Is ‘Begging For War’, NPR (Sep. 4, 2017), http://www.npr.org/sections/thetwo-way/2017/09/04/548461574/haley-north-korea-begging-for-war.

[15] Peter Baker & Rick Gladston, With Combative Style and Epithets, Trump Takes America First to the U.N., N.Y. Times (Sep. 19, 2017), https://www.nytimes.com/2017/09/19/world/trump-un-north-korea-iran.html.

[16] The New York Times, Full Text of Kim Jong-un’s Response to President Trump, N.Y. Times (Sep. 22, 2017), https://www.nytimes.com/2017/09/22/world/asia/kim-jong-un-trump.html.

[17] Peter Baker & David Sanger, Trump Says Tillerson Is ‘Wasting His Time’ on North Korea, N.Y. Times (Oct. 1, 2017), https://www.nytimes.com/2017/10/01/us/politics/trump-tillerson-north-korea.html.

[18] Al Jazeera, Trump on North Korea: ‘Only one thing will work,’ N.Y. Times (Oct. 7, 2017), http://www.aljazeera.com/news/2017/10/trump-north-korea-work-171008041543749.html.

[19] North Korea: Nuclear war may break out at ‘any moment,’ N.Y. Times (Oct. 16, 2017), http://www.aljazeera.com/news/2017/10/north-korea-nuclear-war-break-moment-171017034147416.html.

[20] Robin Stein & Drew Jordan, Can the U.S. Stop a North Korean Missile?, N.Y. Times (Aug. 27, 2017), https://www.nytimes.com/video/us/100000005350585/us-missile-attack-defense.html.

[21] Id.

[22] William J. Broad et al., This Missile Could Reach California.But Can North Korea Use It With a Nuclear Weapon?, N.Y. Times (Sep. 3, 2017), https://www.nytimes.com/interactive/2017/08/22/world/asia/north-korea-nuclear-weapons.html?_r=0.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Geoff Brumfiel, Here Are The Facts About North Korea’s Nuclear Test, NPR (Sep. 3, 2017), http://www.npr.org/sections/thetwo-way/2017/09/03/548262043/here-are-the-facts-about-north-koreas-nuclear-test.

[29] Stein & Jordan, supra note 20.

[30] Id.

[31] Id.

[32] Id.

[33] Id.

[34] Max Fisher, Bad News, World: China Can’t Solve the North Korea Problem, N.Y. Times (Sep. 6, 2017), https://www.nytimes.com/2017/09/06/world/asia/china-north-korea-nuclear-problem.html?mtrref=www.nytimes.com.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Chloe Sang-Hun, North Korea Says U.N. Sanctions Are Causing ‘Colossal’ Damage, N.Y. Times (Sep. 29, 2017), https://www.nytimes.com/2017/09/29/world/asia/north-korea-un-sanctions.html.

[42] Sang-Hun & Sanger, supra note 12.

[43] Id.

[44] Chloe Sang-Hun, South Korea Faces an Uncomfortable Reality: A Nuclear Neighbor, N.Y. Times (Aug. 21, 2017), https://www.nytimes.com/2017/08/21/world/asia/south-korea-north-nuclear-weapons.html.

[45] Id.

[46] Id.

[47] Id.

[48] Scott Neuman, Putin: North Korea Would ‘Eat Grass’ Before Giving Up Nukes, NPR (Sep. 5, 2017) http://www.npr.org/sections/thetwo-way/2017/09/05/548676414/putin-north-korea-would-eat-grass-before-giving-up-nukes.

[49] Richard Gonzales, U.N. Security Council Approves New North Korea Sanctions, NPR (Sep. 11, 2017), http://www.npr.org/sections/thetwo-way/2017/09/11/550301634/u-n-security-council-approves-new-north-korea-sanctions.

[50] Id.

[51] Neuman, supra note 14.

[52] REUTERS, Merkel suggests Iran-style nuclear talks to end North Korea crisis, REUTERS (Sep. 9, 2017), https://www.reuters.com/article/us-northkorea-missiles-germany/merkel-suggests-iran-style-nuclear-talks-to-end-north-korea-crisis-idUSKCN1BK0WU.

[53] Id.

[54] Treaty on the Non-Proliferation of Nuclear Weapons (NPT), United Nations Office for Disarmament Affairs, https://www.un.org/disarmament/wmd/nuclear/npt/.

[55] Treaty on the Non-Proliferation of Nuclear Weapons, Dec. 12, 1985, 729 U.N.T.S. 161 [hereinafter NPT].

[56] Id.

[57] Democratic People’s Republic of Korea: Accession to Treaty on the Non-Proliferation of Nuclear Weapons (NPT), United Nations Office for Disarmament Affairs (2003), http://disarmament.un.org/treaties/a/npt/democraticpeoplesrepublicofkorea/acc/moscow.

[58] Vienna Convention on the law of treaties art. 26, May 23, 1969, 1155 U.N.T.S. 311.

[59] Id.

[60] NPT, supra note 55, at art. X.

[61] Id.

[62] Id.

[63] Id.

[64] N.Y. Times, Full Text: North Korea’s Statement of Withdrawal, N.Y. Times (Jan. 10, 2003), http://www.nytimes.com/2003/01/10/international/asia/full-text-north-koreas-statement-of-withdrawal.html.

[65] Id.

[66] Statute of the International Court of Justice art. 38(1)(c), Apr. 18, 1946, http://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdf.

[67] Nuclear Tests (Austl. v. Fr.), Judgment, 1974 I.C.J. Rep. 253, (Dec. 20).

[68] Payment of Various Serbian Loans Issued in France (Fr. v. Yugo.), 1929 P.C.I.J. (ser. A) No. 20 (July 12).

[69] North Sea Continental Shelf Cases (Ger. v. Den.; Ger. v. Neth.), Judgment, 1969 I.C.J. Rep. 3, ¶ 71 (Feb. 20).

[70] Jurisdictional Immunities of the State (Germ. v. It.), Judgment, 2010 I.C.J. Rep. 310, ¶ 55 (July 6).

[71] North Sea Continental Shelf Cases (Ger. v. Den.; Ger. v. Neth.), Judgment, 1969 I.C.J. Rep. 3, ¶ 74 (Feb. 20).

[72] Micah Zenko, Toward Deeper Reductions in U.S. and Russian Nuclear Weapons, CFR (Nov. 2010), https://www.cfr.org/report/toward-deeper-reductions-us-and-russian-nuclear-weapons.

[73] Jill M. Sheldon, Nuclear Weapons and the Laws of War: Does Customary International Law Prohibit the Use of Nuclear Weapons in All Circumstances, 20 Fordham Int’l L. J. 181, 1996, at 248-49.

[74] Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 188 (June 27).

[75] Treaty on the Prohibition of Nuclear Weapons, United Nations Treaty Collection (July 7, 2017), https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVI-9&chapter=26&clang=_en.

[76] Al Jazeera, Dozens of states sign treaty banning nuclear weapons, Al Jazeera (Sep. 20, 2017), http://www.aljazeera.com/news/2017/09/dozens-states-sign-treaty-banning-nuclear-weapons-170920160614985.html.

[77] McNab & Matthews, Clarifying the Law relating to Unmanned Drones and the Use of Force: The Relationships between Human Rights, Self-Defense, Armed Conflict, and International Humanitarian Law, 39 Denv. J. In’l L. & Pol’y 661, 2011, at 125.

[78] Id.

[79] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 57(2)(a)(i), June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I].

[80] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶¶ 76-77 (July 8).

[81] Id. at ¶ 97.

[82] Gabrielle Blum, The Laws of War and the “Lesser Evil”, 35 Yale J. of Int’l L., 2010, at 25.

[83] U.N. Charter art. 2, ¶ 4.

[84] Ian Brownlie, Principles Of Public International Law 510-12 (7th ed. 2008).

[85] U.N. Charter, supra note 83, at art. 42, 51, 53.

[86] Susan E. Rice, It’s Not Too Late on North Korea, N.Y. Times (Aug. 10, 2017), https://www.nytimes.com/2017/08/10/opinion/susan-rice-trump-north-korea.html.

[87] Nilsson-Wright, supra note 4.

[88] Id.

[89] Rice, supra note 86.

[90] Id.

[91] Nilsson-Wright, supra note 4.

[92] Mohammed & Stewart, supra note 13.

[93] Colin Dwyer, ‘All Options Are On The Table': Unease Reigns After North Korean Missile Test, NPR (Aug. 29, 2017), http://www.npr.org/sections/thetwo-way/2017/08/29/546992435/-all-options-are-on-the-table-unease-reigns-after-north-korean-missile-test.

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"The Interview" Censored Graphic

Sony Pictures’ “The Interview”— Freedom of speech or act of war?

            The Interview, starring Seth Rogen and James Franco is a comedy about the assassination of North Korea’s leader, Kim Jong-un.  Bitterly offended by the film, North Korea called the content an “act of war.” North Korea began making threats during the summer of 2014, going so far as involving the United Nations in an attempt to stop the production of the film. Despite this, Sony Pictures refused to cease production and release of the film.  In November 2014, Sony’s computer system was besieged by a series of hacks by a group calling themselves the Guardians of Peace.  This eventually culminated in Sony cancelling the release of the film due to threats of further attack in movie theaters.  Sony and the United States suspected North Korea of masterminding the cyber-attacks while North Korea vehemently denied any part in it.

The controversy surrounding the film centers on freedom of speech. The reaction to the initial cancellation of the film in Hollywood was intense with concern that censorship in response to threats will set a dangerous precedent where films and other forms of art will be censored in response to threats. President Obama voiced similar concern over the repercussions Sony’s initial decision to cancel the release of the film will have on freedom of speech, as did other politicians from around the world.

"The Interview" Censored Graphic

“The Interview” Censored Graphic
Photo Credit: TechCrunch.com

However, not everyone agrees that a film depicting the assassination of the leader of a sovereign nation represents a black and white issue of freedom of speech, especially when it involves a nation with whom we do not have good international relations to begin with. Of further concern was the sympathy some Russian officials lent to North Korea in their reaction to the film, as well as the apprehension of North Korea’s ally, China, to get involved in any blame for the cyber-attacks on Sony Pictures.

Though restricted in some nations, freedom of speech is a human right. However, nowhere is this right without limit. More recently, freedom of speech came up with Pope Francis’ controversial assertions on the limits of freedom of speech in reaction to the terrorist attack on Charlie Hebdo by Islamic extremists.

Out of these recent controversies, questions for the future arise: Can freedom of speech go too far? Could too much freedom of expression result in war? Or will restriction of freedom of expression itself lead to war and violation of human rights? Ultimately, we must find a way to balance the competing interests, preserve our rights and settle our cultural differences peacefully.

Bernadette Shetrone is a 3L law student at University of Denver Sturm College of Law and a Staff Editor for the Denver Journal of International Law and Policy. 

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Michael Kirby, Chairman of the U.N. Commission of Inquiry on Human Rights in North Korea

Critical Analysis: Will the Crimes Against Humanity perpetrated in North Korea be prosecuted in the ICC?

October 28, 2014

Speaking before the UN General Assembly on Oct. 28, 2014, Marzuki Darusman, the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea (DPRK) encouraged action to stem the ongoing human rights abuses in the country.  Specifically, Mr. Darusman encouraged submitting the Commission of Inquiry’s report to the Security Council to “send an unequivocal signal” to the DRPK that serious follow up would be taken.

The report itself found systematic, widespread, and gross human rights violations amounting in some cases to crimes against humanity.  The human rights violations are unsurprising to most members of the international community.  Amnesty International and Human Rights Watch have both reported on the many egregious conditions imposed upon the people of the DRPK.  One example are prison camps for political offenders that impose ‘collective punishment’ (imprisoning entire families, including the children of offenders).  According to the US State Department, the political prisoners number in the tens of thousands and may exceed 80,000 individuals.

Although Mr. Darusman’s recommendation before the General Assembly made headlines, the statement is a reiteration of the findings of the Commission.  Specifically, the Commission stated that:

The United Nations must ensure that those most responsible for the crimes against humanity committed in the Democratic People’s Rebublic of Korea are held accountable.  Options to achieve this end include a Security Council Referral of the situation to the International Criminal Court or the establishment of an ad hoc tribunal by the United Nations.

The language used in the Commission’s report demonstrates a clear call for justice on the international stage.

Michael Kirby, Chairman of the U.N. Commission of Inquiry on Human Rights in North Korea

Chairman of the U.N. Commission of Inquiry on Human Rights in North Korea, Michael Kirby, spoke at U.N. headquarters, urging action on the report. Photo Credit: Salvatore Di Nolfi / European Pressphoto Agency, http://articles.latimes.com/2014/feb/17/world/la-fg-un-north-korea-20140218.

Non-cooperation has been an ongoing problem for the Commission, as is noted in the report, but recent developments must have caught the attention of the DRPK officials.  Mr. Darusman was “unexpectedly” met by four North Korean diplomats who sought to discuss a potential visit to the DPRK.  The meeting was the first contact with a UN inspector regarding the human rights situation in the last 10 years.  Reaching out may be a good sign, but it remains to be seen whether North Korea will allow Mr. Darusman access to the political prisons much less acknowledge their existence.

Equally unclear is whether the issue would withstand the veto powers of Russia or China if it reaches the Security Council.  Both nations have aligned with North Korean interests in the past.  Russia itself currently faces significant political pressure in the international arena, but that is certainly no predictor of how the delegation will vote.

Jordan Edmondson is a 3L at University of Denver Sturm College of Law and a Staff Editor for the Denver Journal of International Law and Policy.

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Panmunjom

Critical Analysis: North and South Korea’s Talks Working Towards Conflict Resolution

by Samantha Peaslee, Denver Journal of International Law and Policy

October 19, 2014

In mid-October 2014, North and South Korea resumed talks at Panmunjom.  While the two countries are technically still at war, as they never entered into a truce after the Korean War in 1953.  The two countries have proceeded through various discussions and attempts at conflict resolution throughout the years with varying levels of success.  The most recent talks occurred in February 2015, when the two states reached an agreement that relatives from either country to meet each other for the first time since the Korean War.  Both sides also agreed to tone down the harshness of their rhetoric when speaking about each other.  In August 2015, South Korea proposed a new round of talks, hoping for another reunion visit to take place in early September for Chuseok (Korean Thanksgiving).  On October 4, 2015, high-ranking North Korean officials came for the closing ceremony of the Asian Games and agreed to resume formal high-level talks.  While the talks looked momentarily like they would not proceed after North Korea fired at balloons carrying propaganda against North Korean leader Kim Jong-un, the talks proceeded at Panmunjom anyway.

Panmunjom

Flag near the village of Panmunjom in the demilitarized zone between North Korea and South Korea.
Photo Credit: Reuters/Lee Jae-Won.

Each set of talks between North and South Korea has increasingly important implications for international law.  North Korea still does not officially recognize South Korea as an independent state, but as a part of North Korea.  However, each time it treats South Korea as a state, the North weakens the strength of its claims over the South.  While North Korea continues to act as if the two are not separate states in some ways (such as refusing to recognize the Northern Limit Line), engaging in high-level talks suggests that it does in fact recognize South Korea’s statehood.  This could be a very important step for reconciliation between the two states.

These talks could also be interesting to the legal world because they may lead to talks about all conflict disputes and uses of force between the two states over the last several years.  Note that neither North nor South Korea has accepted compulsory jurisdiction to the International Court of Justice.  Therefore, any dispute resolution must come from the two states themselves or allies acting as intermediaries.  The subject matter of this level of talks may range from the recent border altercations to another reunion between citizens to the lifting of the May 24 Measure, a trade sanction imposed on North Korea by South Korea in 2010.  These are topics that could fall within the purview of the ICJ to mediate, but the states have instead decided to work out the consequences and remedies amongst themselves.

While history says that jumping to conclusions about the result of these talks would be unwise, as each past set of talks has failed to prevent incidents between the two states, one should not believe that these talks are useless.  For each step towards reconciliation, whether that means obeying borders or lifting sanctions, the two countries fall more in line with recognized international law.  For a dispute as long as the one between these two states, that is no small feat.

Samantha Peaslee is a 3L law student at the University of Denver Sturm College of Law and Senior Managing Editor for the Denver Journal of International Law and Policy.

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Kim Jong-un

North Korea Undeterred by U.N. Sanctions

On April 15, 2013, North Korea celebrated the 101st birthday of its founding leader, Kim Il Sung.   The day was filled with flowers to honor both its founder and current leader, Kim Jong Un; however, North Korea did not take a reprieve from threatening South Korea and the United Nations.  From Pyongyang, North Korea’s capital, the KCNA reported that “[o]ur retaliatory action will start without any notice from now.”   Pyongyang’s comments were directed at South Korea’s protest to the celebrations.

Kim Jong-un

Kim Jong Un, Flexing His Muscles
(NPR)

This is the latest in a long line of threats North Korea has directed at the United Nations and its member countries.  Just a few days ago, Pyongyang threatened that “Japan is always in the cross-hairs of our revolutionary army and if Japan makes a slightest move, the spark of war will touch Japan first.”  North Korea warned that Tokyo would be the first city targeted for a nuclear strike.

While North Korea continues to threaten the United Nations, member countries Japan and the United States remain positive that a peaceful resolution can be reached through talks.  U.S. Secretary of State John Kerry urged the regime in North Korea to stop its nuclear program and hold talks with the United States and Japan.  In response, the KCNA cited North Korea’s military leaders, stating, “If the puppet authorities truly want dialogue and negotiations, they should apologize for all anti-DPRK hostile acts, big and small, and show the compatriots their will to stop all these acts.”   Although North Korea’s media continues to insult and disregard the United Nations, many believe that talks are still a possibility and a resolution can be reached.

However, this has not prevented South Korea and the United Nations from readying for a possible North Korean attack.  South Korean Defense Ministry spokesman Kim Min-seok said South Korea was closely monitoring North Korea’s moves and was ready for any attack.  The North’s threat is “regrettable,” Kim told reporters. “We will thoroughly and resolutely punish North Korea if it launches any provocation for whatever reason.”  Japan, too, launched fighters to protect its capital from the threat issued by Pyongyang.

Regardless, the current United Nations strategy against North Korea continues to have little impact.  Threats and sanctions issued by the United Nations have been met with open hostility by North Korea, resulting in its third nuclear test and continued military preparations by Pyongyang.  Many initially hoped that new sanctions would “bite, and bite hard” against North Korea, but the sanctions continue to have little effect.  Some are beginning to believe that the reality of the situation appears to be different. Chang Yong-seok, at the Institute for Peace and Unification Studies at Seoul National University, believes “The ultimatum is just North Korea’s way of saying that it’s not willing or ready to talk with the South. North Korea apparently wants to keep the cross-border relations tense for some time to come.”

While the United Nations and its member countries continue to wish for a peaceful resolution with North Korea, it appears that peace may be a long way off.

Brad Bossenbroek is a third year law student at the Sturm College of Law, an editor on the Denver Journal of International Law and Policy, and a Publishing Editor for The View From Above.

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Critical Analysis: What’s up with North Korea?

University students punch the air as they march through Kim Il Sung Square in downtown Pyongyang, North Korea (BBC)

University students punch the air as they march through Kim Il Sung Square in downtown Pyongyang, North Korea (BBC)

Since being sanctioned by the UN in March for carrying out a third nuclear test, Pyongyang has threatened nuclear strikes on the US, formally declared war on the South, and pledged to reopen a nuclear reactor in blatant defiance of UN Security Council resolutions.

On Friday, North Korea warned it would not be able to guarantee the safety of foreign embassy staff if war broke out. But not a single country seems to be taking this threat seriously. Foreign embassies in the capital of Pyongyang appear to be staying put so far despite a warning. Russia is considering the request seriously. However, the British have brushed it off, considering the threat “part of a campaign of continued rhetoric” and asserting that North Korea is insinuating that it is making the request because the US poses a threat to North Korea.

Is war on the horizon?

General Walter Sharp, who until last year was the commander of US forces in Korea, explained the escalation problem to NPR.  The “counterprovocation” plan, that the US intends to invoke if the North Koreans launch even a limited artillery attack on South Korea, authorizes the South Koreans to fire back immediately. As defensive plan, at the root it is an “if you are fired at, fire back.” But this could easily mean war. U.S. officials say the counterprovocation plan and the U.S. flexing its muscles send three strong messages: the South Koreans see that the U.S. military is standing behind them; the North Koreans find out what they’d face were they to start something; and China sees how high the stakes are and why it may need to rein North Korea in.

Furthermore, the Pentagon decided to delay an intercontinental ballistic missile test that was scheduled for next week at Vandenberg Air Force Base in California, for fear that it would only intensify the tensions between the US and North Korea. North Korea has become angered by the military exercises that the US and South Korea are doing. These exercises demonstrate potential power the two allies have to strike back: B-2 bombers and F-22 fighters, and ballistic missile defense-capable warships.  But while the US is taking the threats seriously, leaders continue to say that there are no obvious signs that North Korea is planning for a large-scale attack.

Does North Korea have any support internationally?

Even China, North Korea’s longtime ally, is speaking critically of North Korea’s recent activities. “No one should be allowed to throw a region and even the whole world into chaos for selfish gains,” said Chinese President Xi Jinping at an economic forum in Hainan province. Avoiding mentioning North Korea by name, Xi said, “[w]hile pursuing its own interests, a country should accommodate the legitimate interests of others.”

Chinese officials who value stability above all else will probably not abandon North Korea altogether during these tensions. But seeing an opportunity amid Chinese frustrations, the Obama administration is attempting to push Beijing to take a much stronger stance against the renegade country than it has in the past. China is tightening its stance; it wants dialogue to ease tensions, not war.

Mimi Faller is a 2L at DU Law and a Staff Editor for the Denver Journal of International Law and Policy.

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Are Current U.N. Sanctions Insufficient to Deter North Korea’s Nuclear Proliferation?

2013 Nuclear Test

While the exact details remain unknown, on February 13, 2013, North Korea conducted its first nuclear test since 2010.  Early morning reports of February 13 included a large seismic event located near a prior North Korean underground nuclear test site.  Following this report, the Korean Central News Agency released a government statement confirming the nuclear test and reassuring the Korean people “that the nuclear test that was carried out at a high level in a safe and perfect manner using a miniaturised and lighter nuclear device with greater explosive force than previously did not pose any negative impact on the surrounding ecological environment.”

North Korean Nuclear Weapons

Parading this through downtown Pyongyang may not be the best way to win friends and influence others.
(Telegraph)

Immediate international concern followed.  Regarding North Korea’s nuclear test, President Obama of the United States said “[t]his is a highly provocative act that threatens regional stability, breaches U.N. resolutions and increases the risk of proliferation, calling for ‘further swift and credible action by the international community.”  Almost immediately, the United Nations contemplated additional sanctions, leading to North Korea condemning the international community, threatening to end the cease fire between North and South Korea and threatening a pre-emptive nuclear strike against the U.S.

In response, the 15-member U.N. Security Council voted unanimously on March 10 against North Korea imposing additional sanctions. These sanctions strengthened the prior 2006 Security Council Resolution issued by the U.N. in response to North Korea’s first missile test, asserting banking, trade, and travel constraints against North Korea.

North Korea is no stranger to disregarding U.N. threats and continuing its nuclear testing.  On three prior occasions, North Korea has conducted nuclear tests.  Following each event, the U.N. issued three separate resolutions in 2006, 2009, and 2010.  Thus, the question becomes what U.N. action will sufficiently deter North Korea and, hopefully, bring at least a little more cooperation between the international community and North Korea?

The 2006, 2009, and 2010 Nuclear Tests

Prior resolutions against North Korea have been unsuccessful.  The 2006 resolution states that the Security Council “[d]ecides that the DPRK shall suspend all activities related to its ballistic missile programme and in this context re-establish its pre-existing commitments to a moratorium on missile launching.”  Comparatively, the 2009 resolution reiterates that the Security Council “[d]ecides that the DPRK shall abandon all nuclear weapons and existing nuclear programs in a complete, verifiable and irreversible manner and immediately cease all related activities.”  Obviously, such U.N. “decisions” pose little threat or effect to North Korea, a non-member country of the U.N, because North Korea follows such measures by additional nuclear testing.

While the United Nations and its member countries remain hopeful of change, North Korea appears to be un-persuaded.  Mr. Choi, representative for South Korea, speaking in 2006, “urge[d] North Korea to heed carefully the united voice of the international community and to refrain from any action that would further aggravate the situation on the Korean peninsula.  North Korea should return immediately to the Six-Party Talks without any preconditions.  North Korea should abandon its nuclear weapons and missile programmes once and for all.”  However, as seen, North Korea ignored the hopes of the South Koreans by conducting additional missile tests in 2009, 2010, and now most recently, 2013.  If nuclear testing by North Korea bears such a threat to the peace of the international community, would harsher sanctions provide a reprieve?

Ineffectiveness of Current Economic Sanctions

The U.N. is able to provide broader sanctions, including military action, under its charter.  The U.N. Security Council’s authority vests in Chapter VII of the U.N. Charter.  Under Chapter VII, Article 39, the Security Council has such right to “determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”  Article 41 provides lesser economic sanctions which “may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”  Article 42 grants greater military authority “should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”  Thus, if necessary, the U.N. may order military action against North Korea.

U.N. Security Council

What sanctions to impose today?
(Hurriyet Daily News)

The lack of effectiveness of economic action under Article 41 is apparent in North Korea’s continued nuclear testing.  One problem with the imposition of economic sanctions against North Korea is that they are enacted and enforced weakly.  Orde F. Kittrie, associate professor of law at Arizona State University, finds that U.N. nuclear sanctions pose one of four goals: (1) coercing a change in target behavior, (2) reducing or containing target ability to implement policies, (3) deterring other actors contemplating the same behavior, and (4) future possible sanctions.  While Kittrie notes that such tactics have been successful regarding nuclear proliferation in Iraq, the former Yugoslavia, and Haiti, sanctions against North Korea proved insufficient in 2006.  Sanctions depriving North Korea of travel and luxury goods provide little deterrence for nuclear testing and are merely an annoyance for an area known as the “Hermit Kingdom.”[1]  As such, weak economic sanctions pose little threat to North Korea, providing little deterrence in terms of nuclear testing.

Some U.S. and U.N officials believe that new sanctions imposed in 2013 will “bite, and bite hard” against North Korea, regardless of past sanctions showing little impact.  However, many others see the same problems of the 2006 sanctions occurring in the 2013 sanctions.  While the 2013 sanctions make funneling cash more difficult, these sanctions also embargo the similar sale of high-end luxury goods including “yachts and jewelry.”  Nor do the 2013 sanctions prevent China from providing food, energy assistance and investment, as Doug Bandow of the Cato Institute notes.  As Kittrie previously said in her 2007 article, these types of economic sanctions appear to provide more of an annoyance, rather than deterrence.

Additionally, economic sanctions may simply be ineffective against North Korea’s political and economic ideologies.  North Korea has long suffered from food shortages and economic struggles, leading to self-reliance rather than international trade.  Luxury items are discouraged and seen as harmful to human development.  Thus, economic sanctions have little deterrence against the economically self-reliant North Korea.[2]

While it remains to be seen if the 2013 sanctions will effectively deter North Korea from persisting in nuclear testing, it is also questionable whether harsher restrictions should be placed against North Korea.  As U.N. Charter Articles 41 and 42 state, the U.N. Security Council possesses stronger authority to deter North Korea than its current economic sanctions.  However, current sanctions seem to have only made relations worse between North Korea and the international community, while resulting in little deterrence.  Most importantly, the implementation of current U.N. sanctions has not only led to threats by North Korea, but North Korea’s abrogation of “all agreements on non-aggression reached between the North and the South.”  Lawmakers such as Susan Rice, U.S. ambassador to the U.N., maintain that increasing “North Korea’s isolation” through sanctions is the best option; however, past experience indicates the ineffectiveness of this approach.  Rather, it appears that such isolation techniques have led to an increase in nuclear testing and a decrease in communication between the international community and North Korea.

Conclusion

While it remains to be seen whether the 2013 sanctions against North Korea will effectively deter nuclear testing, the past indicates that these sanctions will not.  The 2013 sanctions have already led to substantial ill-will between North Korea and the international community and little indication that North Korea will cease testing.  As such, the question remains of whether the answer is for the U.N. to invoke harsher sanctions, including potential military action under Article 42, or whether a different approach would lead to better results.

Brad Bossenbroek is a third year law student at the Sturm College of Law, an editor on the Denver Journal of International Law and Policy, and a Publishing Editor for The View From Above.


[1] Orde F. Kittrie, Adverting Catastrophe: Why the Nuclear Proliferation Treaty is Losing its Deterrence Capacity and How to Restore it, 28 Mich. J. Int’l L. 337, 355-80 (2007).

[2] Karen M. Takishita, Economic Sanctions Against North Korea: An Unsuccessful and Sanctimonious Policy Ripe for Modification, 14 Pac. Rim L. & Pol’y J. 515, 530-33 (2005).

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Critical Analysis: Eccentric 90’s American Basketball Player Attempts Diplomacy – Korean War Reignites

 

Dennis Rodman and Kim Jong-un talk Basketball Diplomacy court-side. (The Sun)

Dennis Rodman and Kim Jong-un talk Basketball Diplomacy court-side. (The Sun)

Late last month, Dennis Rodman traveled to North Korea to try his hand at unsanctioned “Basketball Diplomacy.”  More famous for his antics off the court, Rodman was a power forward for, among several other teams, the 1995 – 1998 championship winning Chicago Bulls.  Modeled after the ping pong diplomacy that the United States and China engaged in during the 1970s, Rodman and several other basketball players traveled to North Korea for an exhibition basketball game.  Rodman watched the game court side with North Korea’s leader, Kim Jong-un.  Thought to be North Korea’s first leader to support the United States, Rodman and Kim Jong-un shared laughs during the game and also at a party afterwards.  Despite not being designated an official envoy by the United States, Rodman was able to bring back a message for United States President, Barack Obama: “Kim Jong-un wants [you] to call him.”

Despite his efforts, Rodman was not able to quell the ongoing tensions between the United States and Korea.  Days after the basketball match in Pyongyang, the United States and South Korea engaged in annual joint military exercises.  In response, North Korea cut communications with South Korea and rescinded its cease-fire agreement with the United States and South Korea, signed in 1953.  Adding fuel to the fire, the UN has increased sanctions to North Korea, effectively keeping North Korea’s rich from buying yachts and sports cars, a move North Korea has vowed to retaliate against with nuclear weapons.

Although hostilities have thankfully not re-started following North Korea’s withdraw from the cease-fire agreement, tensions are on the rise.  North Korea has finally had a successful test of a long-range missile and has renewed threats to use nuclear weapons against South Korea.  In response, the United States has pledged to upgrade their missile defense system, effectively negating North Korea’s new-found capabilities.  Whether or not one or both sides are posturing remains to be seen, since China has yet to weigh in on the issue in its current state.

That outlines the current stalemate.  Dennis Rodman flew to North Korea to sit with Kim Jong-un and watch basketball.  Rodman’s suave diplomacy skills uncovered Kim Jong-un’s deep seeded desire to just have a seat at the table with a personal invitation from President Barack Obama. Meanwhile, the world waits with bated breath to see whether China will permit the United States to increase missile defense, rendering not only North Koreans missiles ineffective, but Chinese missiles as well.  

Tom Dunlop is a 2L at Denver University Law and a Staff Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: Google Earth Helps Inspire Human Rights Response Towards North Korea

A number of structures have been identified at camp 22. These include guard houses and burial grounds. (The Telegraph)

A number of structures have been identified at camp 22. These include guard houses and burial grounds. (The Telegraph)

North Korea has been a frequent topic in news headlines lately – from the country’s threat of a nuclear launch to Google CEO Eric Schmidt’s trip to Pyongyang.  However, another story that has been percolating just below the surface for years is just now starting to get attention: Google Maps’ and Google Earth’s revelation of prison camps through satellite imagery.

North Korea’s system of political prisons has operated for over fifty years, yet Pyongyang still insists the camps do not exist.  The only source of information about the camps has come out through the few who have managed to escape from the camps, until now.  On January 18, North Korean Economy Watch announced that a new camp has been identified through the use of Google Earth.  Analyst Curtis Melvin, one of those credited with identifying the camp, has said that the perimeter fence stretches nearly thirteen miles.  With Google Earth’s satellite images, North Korean Economy Watch has identified two entry points, six possible guard posts, a non-operational coal mine, and a number of accommodation units and office buildings.  Human rights activists maintain watch over the camps with this form of constant satellite imagery.

The Committee for Human Rights in North Korea receives imagery and analysis pro bono in a project with DigitalGlobe.  DigitalGlobe is a 20-year-old Colorado firm that provides some of Google Earth’s satellite imagery.  After companies like DigitalGlobe get the imagery, human rights activists such as Joshua Stanton, a Washington lawyer who runs a blog called One Free Korea, analyze the features of what look like political prisoner camps.  Stanton’s work, as well as Melvin’s and Google Earth’s, received acknowledgement in the 2012 edition of “The Hidden Gulag” by the Committee for Human Rights in North Korea.

Although the gulags are not news for these analysts, they are for the rest of the world.  Putting the gulags on Google Maps may have gotten a lot of jokes, but it also gave activists a “reason to hope that the world might finally take notice.”  With the gulags now visible to the world, U.N. High Commissioner for Human Rights Navanethem Pillay is urging the establishment of an independent international inquiry into the mass atrocity crimes taking place in North Korea.  She has “a rare window for meaningful action” because North Korea’s strongest allies, including China, Russia, and Cuba, will finish their terms on the U.N. Human Rights Council before the new session opens next month. This is especially important as other nations, the United States in particular, are focusing on North Korea’s nuclear program and rocket launches.  Unfortunately, even though the country’s deplorable human rights situation is now in the open, many leaders fear a human rights discussion would drive Pyongyang away from talks about its weapons programs.

As more and more information comes out about North Korea’s hidden gulags, possibly just from satellite imagery by organizations like Google Earth, it will become harder to turn a blind eye on North Korea’s human rights situation.  Google Earth is forcing people to do something about the prison camps in North Korea, whether through negotiations, U.N. actions, or pressure from the international community.

Samantha Peaslee is a 1L at the University of Denver, Sturm College of Law and a staff editor at the Denver Journal of International Law and Policy.

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Discussion: A Path to Peace in North Korea

Yesterday, the University of Denver Sturm College of Law hosted Eric Sirotkin, a widely regarded peacebuilder and mediator who has worked to resolve conflict in the Koreas and South Africa (to name just a few).  Earlier this year, he presented a Peace Conference hosted by the North Korean government.  He created a twelve-step plan to end the conflict in the Korean Peninsula.

Monument to the Three Charters for National Reunification
(Business Insider)

North Korea is a much more modern that I would have expected – Pyongyang is a city full of modern skyrises, stadiums, and a recently constructed reunification tower.  Both North and South Korea have unification ministers, whose job is to work toward ending the war and reunifying the country.  However, years of conflict have affected consciousness of the governments.  Indeed, a mindset of war and conflict pervades the dialogue on this issue.  Military parades and shows of force – think the parade of weaponry – are still frequent occurrences in the North.

There remain obstacles to peace in the Koreas.  In 1953, the Armistice ending the military conflict required future meetings to build a peace and restore the countries.  However, the first meeting was tainted by the Cold War, and nothing came.  Militarism, on both sides, pervades the conflict.  While the North Korean military is well knows, the United States recently shifted military assets to Asia.  South Korea hosts many US military bases, and if war breaks out, the United States is in charge of the military operation.  South Korea’s fear of state subversion also plays a role.  South Korea has a strong national security law that makes it extremely difficult for South Koreans to talk openly about the Korean conflict.

But the future is bright.  South Korea will elect a new government this year.  The United States’ election, as well, can be a bright point as people with more positive views on North Korea – such as Bill Richardson or John Kerry – come into influence.  North Korea’s new leader, Kim Jong Un, is fresh blood and is not necessarily beholden to the past.  These new generation of leaders hopefully can transcend beyond the racism and recognize the self-reliance which inheres in Korean society.  With this in mind, Mr. Sirotkin created his peace proposal.

Communication is the foundation for bringing this peace.  Listening to the dialogue, and understanding the context for the dialogue, is key.  This can involve some uncomfortable truths.  The South Korean Truth and Reconciliation uncovered some unsavory actions perpetuated by the United States and South Korea during the war before it was shut down by the South Korean government.  The trick is to move beyond the “bad” North Korean and the “good” South Korea to negotiate while understanding the other side’s position.  To this effect, the West needs to shift its negotiation structure to recognize the cultural underpinnings of North Korea and address that state as a co-equal state on the international playing field.  Jimmy Carter, a frequent visitor to North Korea, talks about North Korea’s desire to trade nuclear weapons for a peace treaty.  The point is, the US needs to open its dialogue and treat NorthKorea as coequal state on the international field.

This comments are my impression of Eric Sirotkin’s presentation, but do not necessarily reflect his views.

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