There are two major geopolitical flashpoints in North-East Asia, both of them possessing significant legal dimensions. The first is the dispute between China and Japan concerning sovereignty over the Diaoyu/Senkaku islands. The other - and much more serious - problem is North Korea’s acquisition of nuclear weapons and its increasingly bellicose threats to use them against South Korea and possibly other States in the region.
North Korean Crisis
The news media, till very recently, carried almost daily reports of some new developments in the ‘North Korean crisis’, emphasising its political, diplomatic, and military dimensions. Such an emphasis is understandable given the enormity of the threat posed by the stance of the North Korean regime to the peace, stability, and many millions of lives in the region. The major practical responsibility for preventing a nuclear-armed catastrophe lies, after all, on the political and military leaderships of the States involved. The crisis does, however, possess a significant legal dimension which will condition the actions taken by most of the players in the unfolding drama.
North Korea - known officially as the Democratic People’s Republic of Korea - is a relic of the Cold War. Established as a communist dictatorship during occupation by the Soviet Red Army in 1948, North Korea invaded its southern neighbour in 1950. The invasion was repulsed by a United Nations military force after three years of warfare, in which more than 1.2 million people were killed. The fighting was interrupted by an armistice (ie, cease-fire) agreement between the belligerents.
No peace treaty has ever been concluded, and North Korea’s southern border remains the most heavily militarised frontier in the world.
Since at least the early 1990s, North Korea has been developing long-range missile technology capable of delivering nuclear warheads. The successfully-tested Nodong missile has a range of at least 1,000 kilometres; ie, far enough to reach South Korea, Japan, parts of the Russian Far East, and northern China.
In October 2006, North Korea conducted its first test of a nuclear weapon. A second test was conducted in May 2009. The Russian Defence Ministry estimated the latter explosion to be 15-20 times more powerful than the bomb which destroyed Hiroshima. Later the same year, North Korea announced that it possessed a stockpile of nuclear weapons. In January this year, North Korea declared its intention to conduct another nuclear test, and in the following month seismic activity consistent with such a test was detected within North Korea’s testing zone.
Even more ominously, on 11 March this year North Korea announced that the armistice agreement had been ‘invalidated’. As far as North Korea is concerned, therefore, hostilities in the Korean War may now be resumed.
North Korea’s stated justification for declaring the cease-fire agreement invalidated is a wave of economic and commercial sanctions imposed by the United Nations. These sanctions were directed against North Korea for continuing to develop a nuclear weapons and missile-delivery capability and for proliferating such weaponry to other parts of the world.
This brings us into direct contact with the legal issues.
The starting point for considering whether a State has breached its obligations at international law is always the principle of territorial sovereignty. Territorial sovereignty has been a cornerstone principle of international law since the emergence of the modern State system in the seventeenth century. According to this principle, a State is free to do whatever it pleases within its own territory, subject only to specific limitations imposed by international law itself. Such limitations may be found in international treaty law and international customary law (and, perhaps, the ‘general principles of law recognised by civilised nations’).
Therefore, unless North Korea has violated some specific obligations binding on it under international law, it is free to develop, build and maintain nuclear weapons and missile delivery systems within its territory. Indeed, each permanent member of the United Nations Security Council (China, France, Russia, the United Kingdom, and the United States) has long done precisely that. Several other States, such as India and Pakistan, have followed their example.
Participation in the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) provides a firm basis for concluding that a non-nuclear State has surrendered its legal freedom to develop and acquire nuclear weapons. Only a small handful of States are not parties to the NPT. North Korea acceded to the NPT in 1985, but became in 2003 the only State to withdraw from participation.
Furthermore, in 1996 the International Court of Justice provided to the United Nations General Assembly an advisory opinion in response to the question: ‘Is the threat or use of nuclear weapons in any circumstances permitted under international law?’ The Court replied that the threat or use of nuclear weapons ‘would generally be contrary to the rules of international law’, but ‘the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of the State would be at stake.’ In other words, the Court accepted the possibility that there might be circumstances in which the threat or use of nuclear weapons (and by logical extension, their acquisition and possession) would be lawful.
Surely, then, North Korea must be within its legal rights to follow the example of other nuclear-armed States. On the surface, this looks like a straightforward question of the rule of law: How can there be one law for some States, and a different law for others? This is the way North Korea would like to frame the issue.
Nuclear Weapons and Self-Defence
The first response is to observe that the advisory opinion of the International Court of Justice leaves open the possibility of threatening or using nuclear weapons only in an ‘extreme circumstance of self-defence’. Indeed, Art 2 of the United Nations Charter places legal obligations on all States to settle disputes exclusively by peaceful means and to refrain from the threat or use of force in their international relations. North Korea, by contrast, has threatened to re-unite the Korean peninsula by force (as it attempted to do in 1950-53, and consistently with its purported ‘invalidation’ of the armistice agreement).
The acquisition, threat or use of nuclear weapons for non-defensive purposes would clearly be contrary to international law.
Powers of Security Council
In any event, there are special powers conferred on the Security Council by the United Nations Charter. The Charter is, of course, an international treaty imposing legal obligations on all member States. North Korea became a party to the Charter, and thus a member of the United Nations, in 1991.
The Charter imposes important obligations and confers extraordinary powers on the Security Council. Article 24(1) states that the Security Council has ‘primary responsibility for the maintenance of international peace and security’ and that it acts on behalf of all members of the United Nations. Chapter VII of the Charter (Arts 39-51) is of particular significance. Article 39 provides that the Security Council ‘shall determine the existence of any threat to the peace, breach of the peace, or act of aggression’ and shall make ‘recommendations’ or decide upon certain ‘measures’ in order ‘to maintain or restore international peace and security’. Under Art 41, ‘measures’ may include those ‘not involving the use of armed force’, and are such as may be ‘employed to give effect to its decisions’ (eg, the air transport embargo imposed on Libya for refusing to hand over the accused Locherbie bombers for trial). The United Nations has also evolved a customary practice under Chapter VII of the Charter whereby the Security Council may authorise States to use armed force in order to give effect to its decisions under Art 39 (eg, the eviction of Iraq from Kuwait by a Security Council-authorised multinational force in 1991).
Article 25 of the Charter imposes an obligation on all United Nations members ‘to accept and carry out the decisions of the Security Council’. Driving the point home, Art 103 makes a claim of supremacy for the Charter by providing that Charter obligations prevail over any other treaty-based obligations.
It is to be noted that the Security Council is not a judicial body (the International Court of Justice is the principal judicial organ of the United Nations). Rather, the Security Council is a political organ which, like a domestic legislature, may make a policy assessment of a situation and adopt legally-binding measures in response.
It is therefore not necessary for the Security Council to find that there has already been a breach of international law before adopting measures under Chapter VII (any more than it is necessary for the Hong Kong Legislative Council to find a breach of the law before enacting legislation). It is only necessary that the Security Council form the view, based on an all-round assessment including political factors, that a particular situation constitutes a ‘threat to the peace’. Having formed that view, it may adopt measures under Chapter VII of the Charter engaging an obligation of compliance under Art 25.
Given the Security Council’s essentially political character and the potentially enormous powers conferred on it under Chapter VII, there is clearly potential for abuse. There are two safeguards built into the Charter to meet this contingency. First, a super-majority of nine out of the Security Council’s 15 members is necessary in order to adopt a compulsory measure under Chapter VII (Art 27(3)). Second, each of the Security Council’s five permanent members enjoys a veto over any such measure.
Security Council Resolutions
North Korea is currently in breach of three Security Council Resolutions addressed specifically to it and made under Chapter VII of the Charter. Other relevant Security Council Resolutions are not here discussed for reasons of space.
Resolution 1718 (2006) saw the Security Council unanimously direct North Korea to ‘not conduct any further nuclear test or launch of a ballistic missile’, ‘suspend all activities related to its ballistic missile programme’, and ‘abandon all nuclear weapons and existing nuclear programmes in a complete, verifiable and irreversible manner’. Member States were also given permission to intercept and search shipments of cargo going to and from North Korea for WMD or associated items. A ban was placed on North Korea’s import or export of, inter alia, missiles, missile systems and related materiel including spare parts. Member States were required to freeze the overseas assets of individuals and companies involved with North Korea’s weapons programmes. For good measure, member States were also required to ban the export of luxury goods to North Korea.
The Security Council, by Resolution 1874 (2009), unanimously condemned North Korea’s nuclear tests of May 2009. It also demanded that North Korea ‘not conduct any further nuclear test or any launch using ballistic missile technology’, ‘suspend all activities related to its ballistic missile programme’, return to membership of the NPT, ‘immediately comply fully with its obligations under relevant Security Council resolutions’, and ‘abandon all nuclear weapons and existing nuclear programmes in a complete, verifiable and irreversible manner and immediately cease all related activities’. Further economic and commercial sanctions were imposed.
Finally, on 7 March, the Security Council adopted Resolution 2094 (2013). This is the Resolution which North Korea claims is justification for its ‘invalidation’ of the 1953 cease-fire agreement. The Security Council unanimously condemned North Korea’s most recent nuclear weapons test, re-affirmed the demands of earlier Resolutions including those concerning nuclear weapons, ballistic missiles and North Korea’s return to the NPT, and further strengthened the regime of economic, commercial and financial sanctions against that State. North Korean diplomatic personnel are to be the subjects of ‘enhanced vigilance’, in order to ‘prevent such individuals from contributing to North Korea’s nuclear or ballistic missile programmes, or other activities prohibited by’ earlier Resolutions. The Security Council also decided that ‘all States shall inspect all cargo within or transiting through their territory that has originated in [North Korea], or that is destined for [North Korea], or has been brokered or facilitated by [North Korea] or its nationals, or by individuals or entities acting on their behalf, if the State concerned has credible information that provides reasonable grounds to believe the cargo contains items the supply, sale, transfer, or export of which is prohibited by’ earlier Resolutions.
It seems clear that North Korea is in continuing breach of its obligations, under Art 25 of the Charter, to ‘accept and carry out the decisions of the Security Council’. Decisions made by the Security Council under Chapter VII of the Charter are among the most serious obligations in international law. The unanimity with which these Resolutions have been adopted testify to the gravity of the security situation created by North Korea’s on-going violations of its legal obligations.
By Stephen Hall, Professor Faculty of Law, The Chinese University of Hong Kong