The Korean Peninsula has been a tension hotspot for decades, with Kim Jong-un’s regime being the most dangerous and unpredictable force in the region. But ever since North Korea started developing its nuclear programme during the Cold War, its unpredictability has only risen, with a peak in 2017. The aim of this article is to provide a concise but comprehensive summary of the development of North Korea’s nuclear programme and a status-quo analysis of the 2017-2018 missile crisis from different viewpoints.
Throughout this article some specific terms will be used, including ICBMs, which were defined during the elaboration of the 1979 Treaty between the U.S.A. and the U.S.S.R. on the Limitation of Strategic Offensive Arms (SALT II) as follows: “intercontinental ballistic missiles are land-based launchers of ballistic missiles capable of a range in excess of the shortest distance between the north-eastern border of the continental part of the territory of the United States of America and the north-western border of the continental part of the territory of the Union of Soviet Socialist Republics, i.e. a range in excess of 5,500 kilometers”.
2.2. Economic sanctions
There is a very common response from the international community against any type of aggression, so it is appropriate to define the term “economic sanctions”. The Max Planck Encyclopedia of Public International Law defines them as “measures of an economic – in contrast with diplomatic or military – character taken to express disapproval of the acts of the target or to induce that [target] to change some policy or practices or even its governmental structure” (Carter, 2015).
3. Overview of the ongoing issue
3.1. North Korea’s nuclear development
To assess the gravity of the recent events and why today’s crisis is worthy of our attention like never before, it is necessary to understand the nuclear capability of Kim Jong-un’s regime. Even though the development of its nuclear programme began during the Cold War, North Korea’s first successful nuclear test took place on October 9, 2006 (The Guardian, 2006). It was not believed that the regime had a nuclear warhead, an element necessary for a fully destructive nuclear weapon. By 2009 the president of the International Atomic Energy Agency at the time, Mohamed ElBaradei, confirmed that North Korea had nuclear weapons. The second test took place on May 25, 2009, followed by the third on February 11, 2013, and a fourth and fifth test in 2016, this time claiming to have used a hydrogen bomb. It was already obvious that their capabilities were expanding with each test (CNN, 2018).
Another important event to mention was the 2003 withdrawal from the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), North Korea being the first and only country so far to do so. The NPT is the main legal framework aimed at making non-proliferation an international imperative, being completed by several smaller international and regional treaties (Stoiber, 2003, p. 122). Currently 190 countries are part of this treaty, making it the most adhered arms control treaty in history. Besides non-proliferation, the treaty intends to achieve the safe use of nuclear energy and peaceful disarmament. It has created two categories of states: nuclear weapon states (NWS) and non-nuclear weapon states (NNWS). The criterion for this distinction is whether signatory states achieved nuclear weapons until a certain time.
In terms of non-proliferation Article I. declares that NWS would not transfer nuclear weapons or control directly or indirectly to any recipient and prohibits encouragement or assistance of any kind to acquiring possession or control over nuclear weapons. Proportionately, Article II. states the obligation of NNWS not to accept any transfer of possession or control over nuclear weapons under any circumstances. Articles III-V. contain guidelines for the safe use of nuclear energy and Article VI. prescribes a vague obligation for the Parties to “pursue negotiations in good faith to effectively terminate the arms race and pursue nuclear disarmament”. It also urges the Parties to negotiate a treaty on complete disarmament under international supervision. Given the fact that this Article does not provide a temporal guideline on disarmament and it does not prohibit the renewal of existing nuclear weapons clearly, we see NWS, such as the UK considering the renewal of their nuclear deterrent – the Trident in the UK’s case. (The Guardian, 2016).
Under these circumstances, it is not surprising that the country regarded as the “rogue state” is willing to make such a bold move by withdrawing from the NPT, while also in violation of the Treaty. It can easily interpret the actions of the NWS, or more correctly the lack thereof, as a proof that the international community is not fully dedicated to disarmament. While some countries have reduced their stockpiles in accordance with the NPT’s clauses, we are far from the disarmament which might convince Koreans that they’re not in danger anymore. Therefore, in Kim Jong-un’s view, the very existence of his regime is still threatened and nuclear weapons, being regarded as weapons of deterrence, still seem to be the key to survival, an element which represents leverage in negotiations.
3.2. The current crisis
To understand the reason why recent events are even more alarming than the 2006-2016 series of tests, we need to look at July 4, 2017. North Korea claimed it had conducted its first successful test of an ICBM, with officials confirming that it could reach Alaska. A war of words began between Donald Trump and the Korean leader. This represented a harsh, mocking approach we had never seen before on behalf of the United States’ diplomacy regarding the Korean problem, which was tackled very prudently by past presidents.
Through threats of a detailed plan on behalf of North Korea to attack the US territory of Guam, an island in the Pacific of significant military importance, South Korea said Pyongyang might be able to load a nuclear warhead on an ICBM sometime in 2018. But contrary to what we were expecting, 2018 has been quiet so far. No more tests have been conducted until this point and North Korea seems to reach out to its main enemies, South Korea and the US. This is where we stand today (CNN, 2018).
4. The world’s reaction
As mentioned above, the prime reaction is economic sanctioning. The UN has created a complex body of sanctions over time through resolutions, with sanctions varying from bans on exports (Resolution 1718 (2006)) to financial measures aimed at reducing North Korea’s access to the international financial system. Although the UN Charter does not include the term “sanctions” as a form of enforcement specifically, the legal basis is Chapter VII., Article 41., which lists enforcement measures. The list is not exhaustive, so the UN has the freedom to impose sanctions of great variability, which has happened throughout the crisis (Security Council Report, “UN Sanctions”).
The United States, China, Russia, and Japan followed as well. But do sanctions work? Despite their imposition for over a decade, North Korea’s economy seems to develop (Bloomberg, 2017). So, why did this approach work in the case of Iran, while North Korea seems to be able to hold its ground? One argument might be that North Korea is much more isolated than Iran, therefore, it is a lot more difficult to affect its economy through an external force. We have also seen China and Russia taking a particularly soft stance when it comes to enforcing sanctions, more precisely violating them, and in this case it is appropriate to ask whether such measures can be fully successful if certain states do not bother with sending the right message (Rogan, 2018). North Korea’s steady economic development demonstrates that the current approach of the international community is something they can manage, while the further expansion of their nuclear deterrence is much more important to them than compliance.
Furthermore, the current crisis triggered a quite bizarre and irrational exchange of threats between Donald Trump and Kim Jong-un, each of them essentially bragging about nuclear capabilities and how they would destroy each other, most notably the argument about who has a larger nuclear button on their desk. However, it is far more important to reflect on the prospect of a military strike against North Korea, a possibility that seems to be taken into consideration by President Trump. Preventive war essentially means a military action with the aim of destroying the capability of the opponent to attack. There is one significant aspect when discussing the possibility of such an action: it is illegal without the consent of the UN Security Council under international law.
The UN High Level Panel on Threats, Challenges and Change presents the questions related to the legality of military action in “A more secure world: Our shared responsibility”. Article 51. of the UN Charter enables the use of force in cases of self-defence and military action authorised by the Security Council is discussed under Chapter VII. A preventive strike by the United States would not qualify for an action of self-defence and would never be accepted by the Security Council, since two of the permanent members, Russia and China, will most likely veto the resolution. This means that the use of force will remain outside the scope of legal area in this case and it would be a similar context to the 2003 invasion of Iraq, considered illegal by Kofi Annan, the then United Nations Secretary-General and many others (The Guardian, 2004). Moreover, Kim Jong-un’s unpredictability might mean a brutal and destructive retaliation accompanied by severe destabilisation of the area.
Interestingly, tensions still seem to de-escalate. North and South Korea have participated together at the 2018 Winter Olympics and Donald Trump received an invitation to talk directly to Kim Jong-un, which he accepted, being the first US President to do so. The reasoning behind Pyongyang’s actions is unclear. It might be because – for the first time – the Korean leader has a reckless American counterpart and his belligerent threats, together with the recent waves of sanctions, might have frightened him in fact. Or Kim Jong-un could take an advantage of this recklessness and the fact that Donald Trump’s responses seem hasty, thoughtless, uncontrolled, and out of tune when compared to past approaches. The invitation might have been a gamble. Suddenly, North Korea played good for a while after giving the entire world a scare and then played the odds of receiving a presidential meeting. What is the meaning of such a meeting? The most essential thing North Korea craves is legitimacy. If the leader of North Korea meets the “Leader of the Free World” he gains status in the international community, something former presidents avoided at all costs. By being regarded as a candidate worthy of a presidential meeting, the USA’s stance on aggressive totalitarian regimes will be softened.
Due to North Korea’s history of breaking its promises, the future is certainly unclear. The USA might lose its most important bargaining chip, an event which now seems to be inevitable. It has become clear that the international community does not have satisfactory mechanisms besides economic sanctions to peacefully enforce nuclear disarmament on Pyongyang. The latter, due to North Korea’s isolation and the unwillingness of certain states to fully enforce the measures, might prove to be insufficient at some point. In this case our hope lies with the presidential meeting. Maybe Donald Trump and Kim Jong-un speak the same diplomatic language and we will see a change in the decade-long missile crisis.
By Patricia Cimpian
This material was published in Lawyr.it Vol. 5 Ed. 3, September 2018, available only online.
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