Swans

North Korea And International Law

by Nikhil Shah

May 12, 2003

I. INTRODUCTION

With the recent crisis with North Korea, the Bush administration has been considering using military force against the regime there to prevent them from gaining nuclear weapons. The administration has stated that such a strike could be justified as North Korea has violated all of its obligations to prevent it from developing nuclear weapons and has threatened the U.S. with force. (1) Thus, according to the administration, force could be justified by a preemptive strike under the self-defense clause of the UN charter or through any non-compliance with a future Security Council resolution asking North Korea to disarm. (2) The desired effect of military action could include a regime change in North Korea. (3)

The US plans to attack North Korea unilaterally would violate international law as it would be an offensive war prohibited by the UN charter and other international treaties and agreements which the U.S. is a signatory to. The use of force would not be justified by the self-defense clause of the UN charter, as North Korea has not directly threatened the U.S. with force, but has rather faced numerous formal threats (to its survival) from the U.S. since the end of the Korean War. (4) North Korea's withdrawal from the Nuclear Non-Proliferation Treaty was legal and in response to the menacing security environment they face. (5) North Korea's withdrawal from other treaties calling for nuclear disarmament is reasonable considering its valid perception that its very survival is at stake. (6) The U.S. itself has withdrawn from several treaties due to lesser claims of national security than North Korea. (7) US claims about North Korea's 'threat' are further undermined by the fact that North Korea has been willing to resolve the conflict diplomatically and peacefully as long as they get assurances against an aggressive attack by the U.S. (8) The U.S. has itself rejected preemptive war in the past to deal with nuclear proliferation due to the disproportionate destructive consequences of such an action. (9)

Any unilateral use of force could not be justified by a Title VII action of the UN charter either as there has been no breach of international peace and security on the part of North Korea for the Security Council to act. (10) The current crisis with North Korea was caused by the Bush administration's overtly aggressive stance against North Korea as epitomized by his axis of evil speech. (11) Furthermore, there have not been any attempts at a viable and fair diplomatic solution to solve the conflict as required by the UN charter. (12) Most attempts at diplomacy by the U.S. were nothing more than blackmail, especially in relation to its population. (13) Any action against North Korea would also raise concerns about unequal treatment towards North Korea in violation of Article 2.1 of the UN Charter. (14)

Part II of this article will provide vital background information about the conflict in North Korea from 1991 to the present crisis. Part III will deal with issues of preemptive military strikes and show why the case of North Korea does not fall into this category. Part IV will discuss the use of force according to Title VII of the UN charter and once again show why the issue of North Korea does not qualify as a breach to international peace and security to be raised in the Security Council. Part V will conclude by summarizing the arguments and discussing the negative consequences of any unilateral action by the U.S.

II. BACKGROUND

The Korean War never officially ended, but was terminated by a legal cease-fire in 1953 which has lasted for 50 years. (15) After the end of the cold war in 1991 there was an attempt by North and South Korea to diffuse tensions which led both to make a joint declaration on keeping the peninsula free of nuclear weapons. (16) They pledged not to test, produce, receive, store, deploy or use nuclear arms, and agreed to mutual inspections. (17) North Korea also joined the UN in 1991. (18)

As political analyst Gregory Elich shows in "Targeting North Korea," (19) nuclear tensions between North Korea and the U.S. broke out in 1993 when former President Clinton announced that the US military would resume war games in South Korea. The U.S. then announced that it was going to target North Korea with nuclear weapons, some of which were previously aimed at the Soviet Union. (20) This provocative behavior by the U.S. caused North Korea to resign temporarily from the Nuclear Non-Proliferation Treaty (NPT). (21) Tensions between the two countries resumed when the International Atomic Energy Agency (IAEA) insisted on very intrusive inspections such as inspecting undeclared nuclear sites in North Korea, which it had not demanded from any other country. (22) The IAEA took this posture due at the bequest of U.S. officials, who were keen on using these inspections to gather more intelligence on North Korea and apply pressure to the regime there. (23) At this time, North Korea discovered that the IAEA inspectors were in fact passing intelligence about North Korean nuclear sites to U.S. officials in violation of their mandate. (24)

Drawing on emotional news reports, the Clinton administration charged that plutonium extracted from North Korea's Yongbyon nuclear facility was being utilized in the development of nuclear weapons and that North Korea should not be allowed to develop a nuclear bomb. (25) In 1994, talks between the U.S. and North Korea had broken off, and the U.S. pressured the UN Security Council to impose sanctions, which the North Koreans considered a declaration of war. (26) The administration started to prepare for war but only prevented from doing so by South Korean opposition. (27) Former President Jimmy Carter then visited Pyongyang and secured an agreement to let IAEA inspectors continue their monitoring of the Yongbyon plant. (28) Official negotiations between the U.S. and North Korea in 1994 led to the signing of the Agreed Framework. (29) According to the agreement North Korea would freeze its nuclear program in return for western help and cash to build light water reactors, which produce less of the plutonium that can be reprocessed to make bombs. (30)

During the late 90s concerns arose about the humanitarian situation in North Korea as a large portion of the population were believed to have starved to death due to a severe famine. (31) UN food aid was brought in to help the famine victims and talks between the U.S. and North Korea pertaining to its nuclear facilities continued. (32) In 1998, Pyongyang fired a long-range ballistic missile that overflew Japan before splashing down in the Pacific. (33) During the same year US warplanes based at the Seymour Johnson Air Base in North Carolina conducted a mock exercise to simulate a long-range mission to drop nuclear bombs on North Korea. (34) North Korea continued to allow inspectors to visit various sites in their country in return for food aid. (35) The team found no evidence of nuclear activity. (36) In 2000, Kim Jong-il, the president of North Korea, and his counterpart from the South, Kim Dae-jung, held a summit in Pyongyang continuing a process of détente between the two neighbors. (37)

Relations between the U.S. and North Korea deteriorated when President Bush singled out North Korea along with Iraq and Iran as belonging to an "axis of evil" accusing Pyongyang of "arming of missiles and weapons of mass destruction. (38) As Gregory Elich states, "Less than three months later, the Bush administration ordered the Pentagon to develop plans for a more flexible policy in the use of nuclear weapons, authorizing first nuclear strikes in three potential scenarios." (39) They could be used to retaliate for "attack with nuclear, biological or chemical weapons" and "against targets able to withstand non-nuclear attack." (40) The latter was seen as "a reference to North Korea's underground industrial and military facilities." (41) Says Elich, "A third category called for nuclear attack 'in the event of surprising military developments,' a phrase vague enough to allow open-ended interpretation." (42)

In October 2002, the U.S. stated that North Korea had admitted that it had a secret program to develop nuclear weapons, in a breach of the 1994 accord. (43) It was using enriched uranium instead of the previous reprocessed plutonium method. (44) North Korea says that it would abandon its nuclear program completely if the U.S. signed a non-aggression treaty. (45) In November, 2002, the U.S. and Japan suspended fuel oil shipments to North Korea. (46) In December of the same year North Korea rejected a call from the IAEA to open up its nuclear facilities to inspectors. (47) It then expelled the inspectors, removed monitoring equipment and announced that it would reactivate the plutonium-based Yongbyon reactor. (48)

In January, 2003, the standoff with North Korea intensified as Pyongyang considered an imposition of economic sanctions as an act of war and again pulled out of the non-proliferation treaty. (49) John Bolton, a US deputy under-secretary of state, accused the North of "driving a stake through the heart" of the existing energy-for-compliance agreement, and warned that Washington was considering a military strike. (50) The British Prime Minister, Tony Blair, was more blunt and said that North Korea was next on the list after Iraq. (51) In February, US satellite photographs showed North Korea moving 8000 plutonium rods out of storage, an important step towards producing nuclear weapons. (52) In March, 2003, Bush again reinforced that force could be used against North Korea's nuclear facilities. (53)

Tensions continued to rise as North Korean fighter jets intercepted an American reconnaissance aircraft over international waters, one of them locking its radar on to the US plane in an apparent prelude to firing a weapon. (54) The war in Iraq has again increased insecurities in North Korea as they see the campaign against Baghdad as a precursor to regime change in North Korea. (55) Tensions were temporarily defused when China was allowed to host talks between North Korea and the U.S. over the nuclear standoff, a concession on the part of North Korea. (56) The talks were again jeopardized by North Korea's declaration that it did possess nuclear weapons although some South Korean officials doubted the validity of the claims and saw it as a ploy by North Korea to have a 'bargaining chip' in the negotiations with the U.S. (57)

III. USE OF FORCE IN SELF-DEFENSE

A. Introduction

The unilateral use of force by the U.S. against North Korea under justification of self-defense would be illegal as the case of North Korea does not fall within the accepted applicability of this concept. The so-called threats of North Korea against the U.S. are in response to Washington's overtly aggressive posture towards Pyongyang including a regime change there. (58) North Korea has exercised its legal right to withdraw from the Non-Proliferation treaty in response to the menacing security environment it has faced. (59) Also Washington is responsible for breaching many elements of the 1994 framework along with North Korea, especially with its aggressive nuclear policies. (60) Also concerns of North Korea's prior terrorist acts could not be dealt by force as they countries affected by such actions have rejected the use of force and the reasonable time frame to act with force has passed. (61) Finally, the U.S. has rejected the doctrine of self-defense in areas of nuclear proliferation before and the crisis still could be resolved diplomatically. (62)

B. The Doctrine of Self-Defense

Article 51 of the UN charter allows a victim of an armed attack to use force to defend itself, pending any action by the Security Council. (63) Restrictionists in the field of international law argue that Article 51 is only valid as self-defense in response to a prior armed attack. (64) Minimalists, on the other hand, argue that this principle should not be restricted and that states should be able to take reasonable action to ensure their security in the face of severe threats other than armed attacks. (65) Thus, Article 51 could be stretched to validate preemptive war against an urgent and imminent threat as Israel reacted to its mobilized Arab neighbors in 1967. (66)

But even an expansive interpretation such as this one is subject to limitations of necessity and proportionality. (67) Necessity restricts the use of military force to the attainment of military objectives. (68) Proportionality requires that possible civilian casualties be weighed in the balance. (69) If the loss of innocent life or destruction of civilian property is disproportionate to the importance of the objective, then the attack must be abandoned. (70) The self-defense clause can only be evoked when the necessity of such action is instant, overwhelming, and leaves no other choices or any chances for deliberation. (71) A state may not take military action against another state when the attack is only a hypothetical possibility and not yet in progress, even in the case of weapons of mass destruction. (72) Acts of anticipatory self-defense such as the raid on an Iraqi nuclear reactor by Israel in 1981, the US air attack against Libya and later Sudan and Afghanistan were perceived by the overwhelming members of the international community as violations of the UN charter. (73)

When Israeli jets bombed the nuclear reactor in Iraq, the Security Council unanimously condemned the bombing, despite the threats that nuclear weapons could pose at the hands of Saddam Hussein. (74) International attention towards these strikes, although negative, did not evoke calls for sanctions as the strikes were of limited duration and did not threaten the framework of international law as a major war would do. (75) Even a legitimate case for self-defense has an additional requirement that it be carried out within a reasonable time from the initial attack in order to fit the categorization of defense during an ongoing attack. (76)

C. The US Position regarding a preemptive strike on North Korea

The US position in using the self-defense clause to launch a strike against North Korea could include the fact that the North is an irrational regime that has negated all of its international obligations to halt its nuclear program. (77) The administration claims that North Korea has rebuffed all diplomatic efforts at a peaceful resolution, has blackmailed the U.S. and has repeatedly acted in an aggressive manner through provocative speeches and by testing missiles. (78) The U.S. claims that some of these missile tests could be a precursor to launching a nuclear attack against California. (79)

North Korea has continued to threaten to withdraw from other obligations such as the 1953 armistice that ended the Korean War and has been condemned by international agencies such as the IAEA. (80) The administration also has brought to attention North Korea's previous support for horrendous terrorist acts such as abductions, the Ragoon bomb attack that killed several members of a South Korean presidential delegation, the mid-air explosion of Korean Airlines Flight 879 in which 115 people died, and the sending of a spy ship to Japanese territorial waters which was sunk by the Japanese during September 2002. (81)

D. Lack of a credible threat and legal right to withdraw from treaties

North Korea has often warned of a threat of war if its security is threatened but has been careful not to make outright threats of attack. (82) As the distinguished international law scholar Richard Falk has said North Korea isn't a threat to the U.S. but is rather threatened by them. (83) No country has been the target of more American nuclear threats than North Korea has since 1945. (84) North Korea has not forgotten about the US military deliberate targeting of civilians and civilian infrastructure during the Korean war with the resulting loss of nearly a million civilian lives and the displacement of millions more. (85)

Even when the U.S. refrained from expressly menacing the North, its military presence posed a real nuclear threat. (86) The U.S. deployed nuclear weapons in South Korea for over 30 years. (87) The US military also conducted numerous military exercises with nuclear-capable artillery and aircraft on the Korean peninsula and carrier aircraft just offshore. (88) Even though these exercises ended in 1993 under pressure from the South Korean peace movement, the U.S. continued its rehearsals for a long-range nuclear bombing strike on North Korea at least up to 1998, and probably to this very day. (89) Also the new US doctrine of a nuclear first strike was seen rightfully by North Korea as directed at its regime and facilities. (90)

North Korea also deduced from the axis of evil speech and the recent war in Iraq (with the goal of overthrowing Saddam Hussein) that they were next in line for an attack under the self-defense clause. (91) Any provocative speeches, especially in the context of ongoing wars on terrorism and Iraq would constitute an extreme threat. (92) Such threatening talk is in violation of Article 2(4) of the UN charter, which obligates states to refrain from "the threat or use of force against the territorial integrity or political independence of any state." (93)

North Korea has also confronted a very menacing security environment and isolation regionally. (94) It is still faced with South Korea's oft-proclaimed ambition to achieve reunification under its aegis. (95) North Korea's security has continued to erode as the South has outpaced it militarily from the 1970s. (96) North Korea's large army of 1 million is more of an illusion of strength as more than half of them are soldier workers, engaged in civil construction (the equivalent of the US army corps). (97) Most of their military equipment is obsolete and US intelligence has concluded that South Korea has an edge over North Korea and could repulse an attack without US forces. (98) The C.I.A. has also previously admitted that it had intentionally overestimated the nuclear threat posed by North Korea to preserve its budget. (99) North Korea has also had troubled relations with its previously close allies, China and the former Soviet Union, as they have themselves contemplated overthrowing the regime there at times. (100)

Under these circumstances it is understandable for North Korea to respond to this illegal threatening rhetoric and menacing regional environment with strong warnings against any infringements on its territorial integrity and through nuclear deterrence. (101) The 1996 World Court opinion on the legality of nuclear weapons did not rule out nuclear deterrence in extreme cases of self-defense "where the very survival of a state would be at stake." (102)

North Korea's withdrawal from the Non-Proliferation Treaty (NPT) was a legal measure under Article X. (103) Article X provides that "Each party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, relating to the subject matter of the Treaty, have jeopardized the supreme interests of the country." (104) In exercising this right of withdrawal, the country must give three months' notice with an explanation of its action, but its own assessment appears to be unchallengeable within the scope of the treaty. (105) Pyongyang's substantiated belief that its very survival is at stake due of the Bush administrations threats would be a sufficient reason for its withdrawal from the treaty. (106)

The IAEA itself indicated that they would prefer that North Korea abandon the NPT rather than have to work with the regime there. (107) The IAEA was more preoccupied with maintaining their sanctity with certain countries like the U.S. through a tough posturing rather than preventing proliferation in North Korea. (108) Right-wing politicians in the U.S. were also eager to see North Korea abandon the NPT as they loathed the idea of working with a hateful communist country and were eager to deal with the North's nuclear program through a change in regime and not by cooperation. (109) They were very distrustful of international cooperation in general and were eager to see the U.S. act unilaterally. (110)

The US accusation of North Korea violating the substance of the 1994 agreement also should not be construed by Washington as a threat as they themselves had violated several specific provisions of the agreement before North Korea did. (111) According to Gregory Elich, "the delivery of heavy oil to North Korea was indeed the sole provision of the Agreed Framework honored by the U.S." (112) Construction of the two light water reactors was calculatedly delayed as the U.S. expected the North Korean regime to collapse. (113) "While the agreement called for 'both sides to reduce barriers to trade and investment,' the U.S. chose to maintain an economic embargo against North Korea." (114) Furthermore, the agreement specified that the U.S. had to provide formal assurances that it would not use nuclear weapons against North Korea. (115) The Clinton administration failed to do so and the Bush administration has specifically called for the use of nuclear weapons against North Korea in an event of a conflict. (116) Article 60 of the Vienna Convention on the law of treaties says that a material breach of a treaty by one of the parties entitles the other country to evoke the breach to terminate the treaty in whole or in part. (117) In addition, the US claims of North Korea violating the agreement through uranium enrichment were also hollow. (118) Nothing in the 1994 agreement prohibited uranium enrichment specifically although it could be seen as violating the spirit of the agreement. (119)

North Korea's decisions to pull out of other agreements should similarly be seen as a legitimate response to the menacing security environment they face. As has been discussed before, these withdrawals from different treaties have been in response to the greater security threat that North Korea has faced by the U.S. in the past year. (120) This use of a fundamental change in circumstances (Rebus Sic Stantibus) to withdraw from treaties is allowed by Article 62 of the Vienna Convention on the Law of Treaties. (121) The U.S. has itself pulled out of numerous conventions that it has disliked for supposed national security or for other reasons. (122) The Bush administration has repudiated the Kyoto Protocol on global warming, the International Criminal Court, the Compressive Test Ban Treaty (CTBT), an international convention to regulate the trade in small arms, a verification Protocol for the Biological convention, the Anti-Ballistic Missile Treaty and several others. (123) Negative world opinion has not prevented the Bush administration from repudiating these conventions and the United States is not viewed as a military threat. The U.S. had also previously violated the 1953 armistice agreement by introducing nuclear weapons into South Korea, which they removed reluctantly in 1991. (124)

E. Disproportionate uses of force and viable diplomatic solutions

In addition to being the cause of North Korea's aggressive posture, the U.S. could not use the self-defense clause of the charter, as the measures they were contemplating in North Korea are disproportionate to its supposed security concerns. (125) There has been a lot of indication that the U.S. had been considering regime change in North Korea as part of its military measures. (126) Such a doctrine would not be allowed by even the most expansive definition of self-defense and the U.S. has rejected similar doctrines in the past when its allies Britain and France invaded Egypt in 1956. (127) Even after the crisis, the U.S. consistently opposed any general rule permitting unilateral armed force to remove threatening or unfriendly regimes. (128) The U.S. has also historically rejected preemptive war to deal with nuclear proliferation against the Soviet Union in the 1950's and against China in the 1960s and 1970s. (129)

Even a limited strike on North Korea would be illegal as it would result in significant civilian casualties and destruction of property on the Korean Peninsula in violation of the proportionality doctrine of the self-defense clause. (130) Any strike against North Korea's nuclear facilities could widely spread radioactive material in the Korean peninsula and even China and Japan. (131) Intelligence officials have also estimated that even if radiation could be contained to a limited area, the possibility of an extensive contamination and substantial civilian casualties are very high. (132) Casualties would also significantly rise with an invasion with an estimated 300,000 to 500,000 US casualties in addition to the hundreds of thousands of North Korean civilians. (133) The supposed threat of North Korea to the U.S., even in terms of weapons of mass destruction is also too hypothetical, especially in terms of the time frame to justify a military action. (134) When Israel used a similar doctrine, but with greater security concerns in 1981, the UN Security Council condemned the attack as a "clear violation of the charter and the norms of international conduct." (135)

Even North Korea's previous support for terrorist acts does not justify force according to the doctrine of self-defense as a significant amount of time has lapsed between the original acts and the allotted responsive time to them. (136) The North Korean terrorist acts were aimed at South Korean and Japanese individuals and political interests and the use of force had been rejected by the affected countries following the acts. (137) South Korea and Japan also favor a peaceful resolution of the current conflict with North Korea and would not welcome an armed confrontation or a collapse of the DPRK regime due to their own security interests. (138) Similarly, the use of the self-defense clause to justify force would be called into question as both South Korea and the U.S. have been responsible for similar provocative behavior in the past. Murder, torture and kidnapping by the organs of the state remained common in South Korea until the democratic revolution of 1987. (139) The U.S. had itself been embroiled in a conflict with China in 2001 similar to the incident between North Korea and Japan over its spy plane which breached Chinese territorial waters and led to the death of a Chinese pilot. (140)

It is primarily due to vague justifications for the use of force that states are limited by principles of state responsibility and prohibited from armed reprisals. An armed reprisal is the use of force for revenge, punishment or general deterrence. (141) The UN General Assembly has stated that armed reprisals are unlawful and that states have a duty to refrain from using them even in context of the most delinquent states. (142) These principles have been widely accepted as part of customary international law. (143)

Another reason why even a limited armed attack would be illegal is because the security concerns that the U.S. might have can be adequately dealt with through peaceful negotiations as is required by article VI of the UN charter. (144) North Korea has repeatedly stated that it was willing to renounce its nuclear program if it got assurances from the U.S. that it would sign a non-aggression treaty. (145) North Korea has also wanted to deal with these matters personally with the U.S. rather than multilaterally although it compromised in this area and allowed China to join the talks. (146) Peter Hayes of the Nautilus Institute (Northeast Asia Peace and Security Network) has argued that North Korea's open declaration of its nuclear intentions has actually been a strategy on its part to show that it is keen on negotiating with Washington. (147) Hayes states that if the North was committed to nuclear weapons under all circumstances, then it would have been more prudent and potent to pursue this strategy by silent, secret uranium processing while engaging in endless talks rather than making bold declarations that would isolate it further. (148)

Washington has chosen to brush aside North Korea's concerns about its security and the fear that they might be coerced to compromise further on this issue through multilateral discussions with Japan, Russia and South Korea. (149) The Bush administration has also dealt with the North Korean regime contemptuously on numerous occasions. Bush has publicly revealed his hatred for the North Korean leadership, called Kim John-il a pygmy and stated his preference for toppling the North Korean regime rather than negotiate with it rationally. (150) The administration has also attempted to blackmail the regime to make political concessions on its security through stopping desperately required food shipments to deal with the famine there in violation of humanitarian principles. (151)

F. Conclusion

Thus, under these circumstances it would be hard for the U.S. to justify military action against North Korea as all of its security concerns to prompt such actions are of its own doing and can be solved diplomatically. Also, the actions contemplated by the U.S. are quite disproportionate to any security concerns it has and in violation of its own previous stances on self-defense. Contrary to the perception of the U.S., North Korea has reacted rationally and legally to its security concerns. Under these circumstances any use of force by the U.S. would be seen as a great violation of the self-defense doctrine and would evoke a bigger international outcry than its previous misuses of this doctrine, especially after the war in Iraq. (152)

IV. USE OF FORCE THROUGH TITLE VII OF THE UN CHARTER

A. Introduction

The use of force against North Korea would not be permitted under Security Council authorization through Title VII of the UN charter as the current crisis does not qualify as a breach to the "international peace and security." North Korea has exercised its legal right to withdraw from the NPT and has been willing to negotiate with the U.S. to assuage its security concerns. (153) North Korea has also historically made clear that it would consider UN sanctions an act of war (due to its volatile internal economic situation) as is recognized by the U.S. (154) Also, bringing up the issue of North Korea and its nuclear program before the Security Council would evoke the principle of double standards as Israel has obtained nuclear weapons capability without UN opposition and threatened its neighbors with that option despite being in a less vulnerable position than North Korea, according to Richard Falk. (155)

B. Title VII and Article 2.1 of the UN Charter

Chapter VII of the UN charter allows the Security Council to act against a nation state after it has identified a "threat to the peace, breach of peace, or an act of aggression" in violation of Article 2(4) (156) The Security Council may, if it deems necessary, authorize military force to maintain or restore international peace and security after it has determined that other means such as non-lethal sanctions are inadequate. (157) But before the Security Council authorizes force, all meaningful attempts must be made by the body at a peaceful solution of the conflict as mandated by Article VI of the UN charter. (158) Any attempt to frustrate efforts towards a peaceful solution deliberately would be contemptuous of the UN charter and illegal as one of the primary functions of the UN is war prevention. (159)

The definition of breach to international 'peace and security' is generally understood to refer to acts of aggression but the concept does not have a universal legal definition and is many times a political consideration. (160) But any act by the UN should be applied evenly to all its members according to Article 2.1 of the UN charter. (161) International legal scholars have affirmed these rights of sovereign equality of states before the international community. (162) They have also stated that every state "irrespective of origin, size, or form of government, has an equal right to order its own internal affairs and in general to direct its policy within the limits of international law." (163)

C. The US position towards dealing with the Security Council

The U.S. claims that North Korea poses a threat to the international community with its abrogation of international treaties and has failed to cooperate with IAEA inspectors who have referred the matter to the Security Council. (164) The U.S. also claims that North Korea has made further provocative statements that it would consider any sanctions put on it an act of war with drastic consequences. (165)

D. Breach to the international peace and security and double standards

Russia's representative to the UN was right when he stated that sending the question of North Korea to the Security Council would be a "premature and counterproductive step." (166) This assessment is true as North Korea has exercised its legal right to withdraw from the NPT and has been willing to give up its nuclear program if it got formal assurances from the U.S. against an aggressive attack. (167) North Korea has seen itself responding to aggressive rhetoric from the Bush administration labeling it an "evil state" whose regime needs to be obliterated. (168) The current crisis with North Korea, as the U.S. categorizes it, was started by Bush and his axis of evil speech and not by North Korea. (169) Regardless of the nature of the regime there, North Korea has a basic right to handle its internal affairs in relation to the threat it faces, particularly as it comports to international law. (170) Due to these reasons and the lack of aggression by North Korea towards any other nation state it would be hard to justify their behavior as a breach of 'international peace and security' by even the most expansive definition. (171)

Russia, along with China and South Korea opposes UN sanctions on North Korea and has urged all sides to "exercise restraint and refrain from taking any actions that could escalate the issue." (172) The issue of sanctions on North Korea is known to be such an issue. (173) North Korea's posture on the sanctions is not a new one as it has always been part of their policy, which was known to the international community. (174) Sanctions have always been a sensitive issue for North Korea due to the humanitarian catastrophe they face internally. (175) Also with recent events in Iraq, North Korea has seen UN sanctions as an inevitable prelude to war. (176)

Another reason why North Korea's nuclear program would not qualify as a 'breach to international peace and security' is because it would be subject to unequal treatment in relation to another member of the UN, Israel, in violation of Article 2.1 of the charter. (177) Unlike North Korea, whose rights have been challenged in fundamental respects, Israel has been allowed to develop nuclear weapons capability without any UN opposition and through the assistance of the U.S. (178) Such discrimination could not be rationalized by perceived threats either. (179) Israel has been involved in a series of wars with its Arab neighbors since it's founding in 1948, and was reported to have been seriously contemplating the use of nuclear weapons during the 1973 war. (180) Israel further has the benefit of having the U.S. as a strong and fully committed ally and enjoys positive relations with a number of other countries. (181) North Korea has not committed aggression against another country since 1950, according the UN, and has none of the other benefits that Israel has in terms of allies or security. (182)

E. Conclusion

Thus, North Korea's nuclear program is not an issue that would qualify as a breach of international peace and security for it to be considered by the Security Council. Its response has been rational according to its security needs and has been within the bounds of international law. Bringing up the issue before the Security Council would be a violation of article 2.4 of the UN charter as Israel is allowed to acquire the most destructible conceivable deterrent due to its 'vulnerability' but North Korea is denied the option even though the same conditions apply to it with greater persuasiveness. (183)

V. CONCLUSION

The use of force to counter the situation of North Korea's nuclear program would be illegal under the self-defense clause and Title VII of the UN Charter. Some prominent international lawyers have argued that the law should not be a suicide pact that restrains states from doing what is necessary to protect the security of their citizens from external attacks. (184) They state that in order for it to retain respect and ensure compliance, the language of the charter should be stretched to fit these requirements of reasonableness. (185)

The flaws of this analysis are shown by Louis Henkin in his observation that "it is not in the interest of the United States to reconstrue the law of the Charter so as to dilute and confuse its normative prohibitions." (186) Henkin further warned that "Extending the meaning of 'armed attack' and of 'self-defense,' multiplying exceptions to the prohibition on the use of force and the occasions that would permit military intervention, would undermine the law of the Charter and the international order established in the wake of world war." (187) He went on to state that the U.S. could and should live with the law of the charter as it was intended to be used through the practice of international bodies in the past. (188) It would not make much sense for the international legal system to be based on respect for the sovereignty of states, while each state has a sovereign right to destroy the sovereignty of others.

Any such rogue use of force by bypassing the UN charter and the understood norms of international law will lead to nothing but rogue outcomes with disastrous consequences. (189) US threats towards North Korea have already disrupted the enormous progress toward reconciliation between North and South Korea and have contributed to the growing anti-Americanism among the population there. (190) The isolated regime in Pyongyang has become even more paranoid with the recent attitude towards international law taken by the U.S. and it is entirely plausible that irrational behavior on their part will result. (191)

The only way to avoid a war is for the U.S. to respect and follow the principles of the UN and return to the status quo before 2001 with North Korea. (192) Desaix Anderson, a former Assistant Secretary of State for East Asia and the Pacific, has recent said (in the context of the current conflict with North Korea) that, "We must deal with realities, not attempt to dictate rules that are meaningless to Pyongyang." (193) To counter the previous aggressive threats, the U.S. should sign a non-aggression treaty with North Korea on condition that it return to the NPT and allow UN inspectors back into the country. The non-aggression treaty is the only non-nuclear alternative for North Korea to achieve its security goals. (194) The U.S. should consequently fulfill its bargain on the NPT by negotiating in good faith with North Korea and themselves roll back reliance on and possession of nuclear weapons, even if on a discretionary basis. (195) This would not prevent the U.S. to come the aid of South Korea or Japan if they were attacked aggressively by North Korea and invited by the countries to help repel the attack as required by the collective self-defense clause of the UN charter. (196) But the rules and regulations that apply to such a concept according to international law would still need to be followed. (197)

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References and Resources

Due to the length of this essay and the large number of references, we have created a dedicated footnotes page. Each reference is hyperlinked so that the reader can go back and forth between the article and the notes.

Nikhil Shah has a B.A. in International Relations from U.C.L.A and is currently pursuing a J.D. from the University of Wisconsin, Madison. He is the Senior Articles editor for the U. of Wisconsin, Madison International Law Journal and the Articles Editor for Law Review.

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