“Perpetual peace is guaranteed by no less an authority than the great artist Nature herself.” – Immanuel Kant
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. Today, North Korea is accelerating the development of its nuclear program. Its motivation for testing is “rooted in a desire for political autonomy, national prestige and military strength.” 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. Then, North Korea tested a missile capable of hitting California. In response to these ballistic missile tests, the United Nations Security Council adopted sanctions against North Korea.
By August, President Trump threatened North Korea with “fire and fury like the world has never seen.” Kim Jong-un, North Korea’s leader, responded with a threat of an “enveloping fire” around Guam, an American territory in the Western Pacific. Trump then claimed his “fire and fury” statement was not enough. He further stated that if North Korea acts “unwisely,” the US military is “locked and loaded.”
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. 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. After the test, Nikki Haley, U.S. Ambassador to the United Nations told the Security Council, Kim Jong-un is “begging for war.”
Addressing the U.N. General Assembly, President Trump vowed to “totally destroy North Korea” if it threatened the United States. In a public statement responding to Trump, Mr. Kim vowed to take the “highest level of hardline countermeasure in history.” President Trump told Secretary of State Tillerson that talking with North Korea is a waste of time. Trump later emphasized, “only one thing will work.” 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.”
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. For an ICBM to reach its desired destination, it needs to go beyond the atmosphere and then come back down. North Korea’s second ICBM test appeared to have the potential to reach the West Coast, and potentially Denver and Chicago. 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. To overcome that challenge, North Korea needs a reentry vehicle that acts like a shield. However, manufacturing defects could cause the warhead to go off course.
Nevertheless, the U.S. believes North Korea has created a warhead small enough to fit on the ICBM, ensuring a longer range. 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. 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.
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. The U.S. has two main types of defense: theater, which is regional, and homeland defense. The former involves Terminal High-Altitude Area Defense (THAAD) in Guam and South Korea along with 19 U.S. warships in the Pacific. While these are good for short or medium range missiles, U.S. interceptors have not had a consistent success rate concerning target missiles. When a nuclear warhead separates from a missile in space, it becomes difficult to distinguish it from debris or potential decoys. Therefore, there is reason to worry about the interceptors used for U.S. homeland defense.
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. Second, China could exercise such an influence. Third, China will influence North Korea once China is properly persuaded.
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. However, such actions will not break Kim Jong-un because “the North Korean system is especially good at…absorbing pain.” Moreover, sanctions by China have either made little change or backfired, leading to embarrassment for China. 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. At this point, China says it will close business joint ventures with North Korea, in line with the latest United Nations sanctions.
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.” Japan and the U.S. plan to work together to increase pressure on North Korea. Meanwhile, South Korean President Moon Jae-in is firmly against a military strike on North Korea. He argues that diplomacy and economic sanctions are the means to stop North Korea’s nuclear advancement. 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.” 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.”
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. However, the United States did manage to compromise with Russia before imposing the new set of sanctions on North Korea. The sanctions limit crude and refined oil exports to North Korea, limit prohibited and refined petroleum sales, and ban all North Korean textile exports.
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. Merkel is prepared to play a role in a diplomatic initiative, suggesting the Iran nuclear agreement could provide a model. She emphasized, “A new arms race starting in the region would not be in anyone’s interests.”
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.” The NPT prohibits non-nuclear weapon state parties from developing nuclear weapons. 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. 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. 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”). Article 26 requires states to carry out their international treaty obligations in good faith under the principle of pacta sunt servanda. 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. States have a sovereign right to withdraw from the NPT. 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. The State must also include “a statement of extraordinary events it regards as having jeopardized its supreme interests” and requiring it to withdraw. 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.” 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.”
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. These principles are legal norms that include equity, estoppel, and laches. 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.” 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.
State practice is the physical and verbal acts of States acting in conformity, or not, with a particular norm. State practice must be “extensive and virtually uniform” and include states whose interests would be “specially affected.” 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. Further, according to the ICJ, the NPT does not establish a new rule of customary international law prohibiting the use of nuclear weapons.
Opinio juris is a state’s belief that it has a legal obligation. 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. 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.” 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. Under jus ad bellum, there is a paradigm called international humanitarian law. A key principle under international humanitarian law is distinction, which requires states to distinguish between legitimate military targets and those who have civilian status. In its advisory opinion, the ICJ noted that mines and chemical weapons inherently violate international humanitarian law. 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.” While advisory opinions are not binding, the ICJ opened the door for states to justify their use of atom bombs.
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.” This prohibition is viewed by the international community as an inherent obligation on all States. 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.
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. Japanese citizens and 10 million South Korean residents are directly in the range of North Korea’s missiles. 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. Third, the U.S. could ruin its delicate relationship with China.
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. 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.” In line with Nilsson’s view, U.S. Defense Secretary Jim Mattis noted “we are never out of diplomatic solutions.” On the other hand, for Trump, after the North Korea’s latest nuclear test, “all options are on the table.”
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.
- Immanuel Kant, Perpetual Peace: A Philosophical Sketch 108 (1795).↑
- BBC, North Korea: What can the outside world do?, BBC (July 4, 2017), http://www.bbc.com/news/world-asia-39216803.↑
- BBC, North Korea crisis in 300 words, BBC (Sep. 5, 2017), http://www.bbc.com/news/world-asia-40871848.↑
- Dr. Nilsson-Wright, North Korea’s nuclear tests: How should Trump respond?, BBC (Sep. 3, 2017), http://www.bbc.com/news/world-asia-41143589.↑
- 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.↑
- 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.↑
- 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.↑
- 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.↑
- 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.↑
- 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.↑
- 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®ion=top-news&WT.nav=top-news.↑
- 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.↑
- 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.↑
- 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.↑
- 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.↑
- 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.↑
- 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.↑
- 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.↑
- 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.↑
- 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.↑
- 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.↑
- 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.↑
- Stein & Jordan, supra note 20.↑
- Id. ↑
- Id. ↑
- 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.↑
- 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.↑
- Sang-Hun & Sanger, supra note 12.↑
- Id. ↑
- 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.↑
- 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.↑
- 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.↑
- Id. ↑
- Neuman, supra note 14.↑
- 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.↑
- Treaty on the Non-Proliferation of Nuclear Weapons (NPT), United Nations Office for Disarmament Affairs, https://www.un.org/disarmament/wmd/nuclear/npt/.↑
- Treaty on the Non-Proliferation of Nuclear Weapons, Dec. 12, 1985, 729 U.N.T.S. 161 [hereinafter NPT].↑
- 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.↑
- Vienna Convention on the law of treaties art. 26, May 23, 1969, 1155 U.N.T.S. 311.↑
- NPT, supra note 55, at art. X.↑
- 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.↑
- Id. ↑
- 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.↑
- Nuclear Tests (Austl. v. Fr.), Judgment, 1974 I.C.J. Rep. 253, (Dec. 20).↑
- Payment of Various Serbian Loans Issued in France (Fr. v. Yugo.), 1929 P.C.I.J. (ser. A) No. 20 (July 12).↑
- North Sea Continental Shelf Cases (Ger. v. Den.; Ger. v. Neth.), Judgment, 1969 I.C.J. Rep. 3, ¶ 71 (Feb. 20).↑
- Jurisdictional Immunities of the State (Germ. v. It.), Judgment, 2010 I.C.J. Rep. 310, ¶ 55 (July 6).↑
- North Sea Continental Shelf Cases (Ger. v. Den.; Ger. v. Neth.), Judgment, 1969 I.C.J. Rep. 3, ¶ 74 (Feb. 20).↑
- 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.↑
- 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.↑
- Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 188 (June 27).↑
- 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.↑
- 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.↑
- 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.↑
- Id. ↑
- 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].↑
- Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶¶ 76-77 (July 8).↑
- Id. at ¶ 97.↑
- Gabrielle Blum, The Laws of War and the “Lesser Evil”, 35 Yale J. of Int’l L., 2010, at 25.↑
- U.N. Charter art. 2, ¶ 4.↑
- Ian Brownlie, Principles Of Public International Law 510-12 (7th ed. 2008).↑
- U.N. Charter, supra note 83, at art. 42, 51, 53.↑
- 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.↑
- Nilsson-Wright, supra note 4.↑
- Id. ↑
- Rice, supra note 86.↑
- Nilsson-Wright, supra note 4.↑
- Mohammed & Stewart, supra note 13.↑
- 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.↑