Non proliferation of nuclear weapons in north korea 6 1-2012

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Non proliferation of nuclear weapons in north korea 6 1-2012

  1. 1. Contemporary issues in public international law The role of international law in non-proliferation of nuclear weapons in North Korea: The search for a grand bargain solution continues11. Introduction .................................................................................................................................................................................3 1.1 Prologue .........................................................................................................................................................................3 1.2 Definitions and explanations on North Korea’s involvement in nuclear activity ...........................3 1.3 North Korea’s potential motivation –the North Korean mind ................................................................4 1.4 Potential implications ..............................................................................................................................................52. Legal Framework and Legal Analysis of the role of international law ...............................................................6 2.1 The international law actors .................................................................................................................................6 2.2 The Nuclear Non-Proliferation Treaty (NPT) ................................................................................................6 2.3 Article X(1) of the NPT –A Legal Lacuna? ........................................................................................................8 2.4 Analysis of the impact of Security Council’s resolutions...........................................................................8 2.5 The International Court Justice’s (ICJ) advisory opinion –A Legal Conundrum ...............................9 2.6 Has international law in general succeeded or failed given what happened so far? ................. 103. A tangled web of legal and political factors in international law...................................................................... 11 3.1 Lessons from past experiences ......................................................................................................................... 11 3.2 Six-party talks- the attempt at a multilateral security order ............................................................... 124. The potential solution .......................................................................................................................................................... 14 4.1 Current development, six-party talks is revived again ........................................................................... 14 4.2 Last resort- Military intervention? .................................................................................................................. 15 4.3 Functional Cooperation -Going beyond the nuclear issue ..................................................................... 15 4.4 Could the answer lie in the EU as a mediator? ........................................................................................... 16 4.5 How the EU can play the role of a mediator................................................................................................. 175. Further prospects and conclusions : An Opportunity in Risk ................................................................................... 18 5.1 Epilogue: What next for North Korea? ........................................................................................................... 19Bibliography ....................................................................................................................................................................................... 191 The author wishes to thank Chong Huck Joo and Dr Paula Jullian for their comments and proof reading. All mistakes are my own.The subtitle for this essay is inspired by the title of the article written by O’Hanlon and Mochizuki, ‘Toward a Grand Bargainsolution with North Korea’, The Washington Quarterly, Autumn 2003Li Li Chong, Student ID No.- 01107620 Universiteit Gent 2011-2012 1
  2. 2. Non-proliferation of nuclear weapons in North Korea AbstractThe question of threat to peace and security from nuclear weapons has been lingering around for 50 yearssince the world witnessed the devastation of World War II. However, it rose to prominence recently, inparticular, the risk of North Korea holding on to their nuclear weapons, not knowing the fate of its usage isbecoming more prevalent today. Coupled with uncertainties that surround its future, North Korea certainlydeserves special attention, more so with the sudden demise of its long-standing ‘Dear Leader’ and as powertransition takes place, we are plagued with serious questions yet to be answered.Against this background, this essay is organized as follows. First, it seeks to assess why and how NorthKorea is inspired to keep to its nuclear ambitions, and to make an analysis on how international law hasfared in curbing this issue. Likewise, this essay also endeavours to draw an analysis by looking at the variouspotential solutions that can complement the role of international law and how best to convert this nuclearsecurity risk into an opportunity.It is our opportune moment to address this problem as a global concern. Consequently, it is crucial for allcorners of society to learn from past lessons, address this problem via an effective international globalcooperation mechanism and delicately manage this situation.The last section presents some final reflections and proposes to complement political cooperation withinternational law as it becomes more recognized at the turn of this century that pursuance of aninternational objective would be more difficult where there are misalignments in political goals andobjectives. More efforts should focus on achieving political unity in willpower. In confronting the interplayof all these elements, this paper discusses the possibility of the European Union entering the picture as the‘neutral’ third party to ‘mediate’ the political differences between the existing parties involved and help toachieve the desired political unity.“In our interconnected world, a threat to one is a threat to all, and we all share responsibility for eachother’s security. If this is true of all threats, it is particularly true of nuclear threat2 ” -Kofi Annan2 Statement made by Kofi Annan, the United Nations Secretary General, in the address made at the Nuclear Non-proliferationTreaty review conference on May 2005 in New York. 2
  3. 3. Contemporary issues in public international law1. Introduction1.1 PrologueAs a starting point, it is noteworthy that December 2011 has seen numerous historical events taking centrestage in the world. On one side of the world in Europe, amidst the financial turmoil, Croatia signed theAccession Treaty with the European Union on 9 December 20113, and on the other side of the world, wewitnessed the mixed reactions to the recent demise of the North Korean’s ‘Dear Leader’ which on the onehand, swept the country with grief and on the other hand, others watching from outside of North Korea arefilled with anxiety over the fate of the country. Kim Jong-ils sudden death certainly leaves an uneasy legacyand whether this could be a turning point or ‘breaking point’ for North Korea depends on his son, KimJong-un4. It is optimistically hoped that there will be a peaceful and stable transition to a new leadershipand that Kim Jong-un will better recognize the need of better engagement with the internationalcommunity.In January 2011, Robert Gates, the then defense secretary of the United States of America (US), warnedthat North Korea was within five years of being able to strike the continental US with an intercontinentalnuclear ballistic missile5. Though no sources can be found to base this statement, this may be one of thereasons why the US re-ignited talks with North Korea. In October, Stephen Bosworth, a top US envoy onNorth Korea claimed that some progress “moving in a positive direction” has been made during talks overNorth Koreas nuclear program. It is expected that the new leader will pick up where the previous leaderleft on. The world now anticipates a better progress in this area, and if a “solid and sincere foundation” canbe built based on enhanced trust and confidence, this can be a start to put a rest on this nuclear threatfrom North Korea. Despite skeptisms to international law curbing issues of non-proliferation of nuclear,drawing from legal essays written by pro-Americans and more unbiased proponents, it is in the author’spersonal view and analysis that international law cannot be purely assessed in its legal dimension, but mustalso be complemented by the political dimension.1.2 Definitions and explanations on North Korea’s involvement in nuclear activityNuclear non-proliferation in this essay is defined as a need of the prevention of nuclear increasing orspreading. The Nuclear Non-proliferation Treaty (NPT) which is at the forefront of this issue aims for, stateswithout nuclear weapons to pledge not to acquire them, while nuclear-armed states to commit toeventually giving them up. For the past decade, North Korea presented numerous challenges to the globalnon proliferation regime.Historically, nuclear weapons have been detonated only twice, wiping out the cities of Hiroshima andNagasaki, and thus ending World War II, but marking the beginning of the nuclear age. It wasn’t long afterthe horrific atomic explosion that we entered into another era, the Cold War period with the threat ofnuclear annihilation hanging over mankind6. Needless to say, nuclear threats remain since then until3 This will pave the way for Croatia’s full membership into the EU block by July 2013.4 Kim Jong-ils death: an uneasy legacy Whether Kim Jong-ils death really is turning point for North Korea depends on his son, andthe countrys greatest ally, China, can be accessed at - http://www.guardian.co.uk/commentisfree/2011/dec/19/kim-jong-il-death-legacy?INTCMP=ILCNETTXT3487 (Last accessed on 20 December 2011)5 Tania Branigan for the Guardian, UK, ‘North Korea is direct threat to US, says defence secretary Robert Gates’, 11 January 2011,can be accessed at http://www.guardian.co.uk/world/2011/jan/11/north-korea-america-robert-gates (Last accessed on 15December 2011)6 Although nuclear weapons are gradually becoming prohibited under international law, they remain a critical issue in post-ColdWar regional and world politics. As North Korea launched its nuclear weapons development program in the early 1990s, theLi Li Chong, Student ID No.- 01107620 Universiteit Gent 2011-2012 3
  4. 4. Non-proliferation of nuclear weapons in North Koreatoday7, even though the Cold War officially ended in 1990s, but as long as countries remain in possession ofthem, and expresses intention to use them as a weapon of attack, is still a risk at large. The reason beingthat non-proliferation of nuclear weapons should be in our radar of concern is because the catastrophicnature of a nuclear disaster, whether intentional or unintentional, are known to be of such gravemagnitude to humankind as it would cause deaths of thousands of lives in an instant and many more wouldsuffer or die from exposure to radiation. That is only an inevitable immediate foreseeable consequence. Infact, the worst consequence out of such a recurrence of the nuclear detonation would be more far-reaching than ever fathomable, as it would strip-off hard-earned and won freedoms and compromise,shaking the cradle of global peace and security.Thus, the issue of non-proliferation of nuclear weapons that threatens peace and security in North Korea isnot just a national concern for North Korea, but is also a regional and global concern. Henceforth, theresponsibility lies not just in international law nor in the regional players concerned alone, but rather –abold proposal is put forth for the concept of a global cooperation in respect for peace and security.1.3 North Korea’s potential motivation –the North Korean mindNuclear development in North Korea is not an alarmingly new recent phenomenon8, though it only firstgained international attention after the launch of its first nuclear test in 2006 and, in a seemingly act ofdefiance against the United Nations, North Korea conducted another nuclear test in 2009. Despite havingbeen subjected to punishment by way of Security Council’s resolutions, it is well-known that thoseinternational sanctions and international law repercussions did not hold North Korea back from carryingout its second nuclear test in 2009, being well-aware of the full-blown negative international reaction to itsconduct. Given this understanding, before delving in the issues, it is pertinent to try9 to identify thepotential motivation behind North Korea’s nuclear ambitions and what they are trying to accomplish bydeveloping nuclear weapons against the protest of the United Nations and the world at large.Most writers in this area omit the need to look into and analyse the historical past of North Korea whichhas led them to where they are today. In this essay, my aim is to show how the historical background leadsto such a demeanor, and that in itself is a crucial point to bear in mind when tackling this sensitive matter.At the inception of Cold War, North Korea’s strategic location between the Soviet Russia, China and Japanin the Far East, served the US as the perfect location to indirectly attack Russia without directly confrontingit. In so doing, the Communist Chinese were also embroiled in conflict between the North and South Korea,leading to the ultimate division at the 38th parallel line, separating the North and the South. Officially, thosetwo parties ‘ended’ that period of conflict through an armistice signed in 1953. But that was not beforenuclear conflict escalated as a political issue in and around the Korean peninsula. Both sides have worked through a painstakingprocess to reach a consensus for the denuclearization of the Korean peninsula, but have found no ultimate solution yet. See morein H. Athanasopulos, Nuclear disarmament in International Law (McFarland & Company 2000).7 This is why Jangho Kim, in ‘Prospects for a Northeast Asian Multilateral Security Order and the United States’, (The Korean Journalof Defence Analysis, Vol. XVII, No.3, Winter 2005) argues that the current post-Cold War era is being prolonged, as well as havingsuch a fluid character, and views that the future would depend much on how the relationship between North Korea and the US ismanaged.8 North Korea seems to have undertaken its secret nuclear weapons program in the late 1970s. Between 1980 and 1987, a 30-megawatt research reactor, of the gas-graphite design that uses natural uranium as fuel, was built near Yongbyon. This design iswell suited to produce plutonium, and is the logical option for aspiring nuclear states with limited industrial capabilities. See morein L. SPECTOR & J. SMITH, NUCLEAR AMBITIONS: THE SPREAD OF NUCLEAR WEAPONS, 1989-1990 123-24 (1990).9 Determining the motivations of a secretive government such as North Korea is extremely difficult, but Emma Chanlett-Avery andSharon Squassoni compiled a list of potential range of possibilities made by analysts in, North Koreas Nuclear Test: Motivations,Implications, and U.S. Options, United States Congressional Research Service, (2006) 4
  5. 5. Contemporary issues in public international lawtwist of events took place, amongst others, the US Marshall who led the troops in South Korea whichthreatened to use nuclear weapons and warned the North Koreans and those supporting them would endin similar fates as Hiroshima and Nagasaki. At that point in time, this was potentially one of the factorswhich shocked and ‘drove’ the North Koreans and their Communist Chinese support armies back to the 38thparallel line. This event is pivotal as it also marks the beginning of a period of the North Koreans’ distrustagainst the US. Kim Il-Sung, the North Korean leader saw the ‘mighty potential’ of nuclear power that alsodrove the Japanese off the Korean soils after nearly 50 years of reign. Motivated by the thought of gainingsuch power through igniting fear in owning nuclear weapons, the North wasted no time in the search ofnuclear development.Zooming ahead to the more present future in 2002, President Bush labeled North Korea as part of the “axisof evil”, along with tightening economic sanctions and blockades against them. As a direct result of that,North Korea interpreted that as an ‘act of war’ and soon after, North Korea withdrew from the NPT andstated its reasons were that because the US was threatening its security by its hostile policy. North Koreaalleged that if they were to give up their nuclear ambitions, they would open themselves up tovulnerabilities of being a potential target of a pre-emptive nuclear attack by the US which itself, is one ofthe biggest nuclear weapon holder in the world while the North Koreans would have nothing to defendthemselves against with. The fact that the US itself is a major nuclear weapons holder, only points towardsinconsistency in treatment as it receives no opposition in the realm of international law, and North Korearealizes this fact. The North Korean ministry announced that the nuclear weapons were made to confront anuclear threat from the US10. This potentially led to the first test carried out by North Korea in 2006 despiteinternational resistance –to demonstrate to the world its nuclear-capable state status and to build onperception that building such nuclear stockpile will strengthen its security posture in the world. The NorthKoreans announced that “the test will contribute to safeguarding their sovereignty and socialism andguaranteeing peace and safety on the Korean peninsula and the surrounding region” 11. Even though theevent of North Korea intentionally detonating their nuclear arsenal is highly unlikely, as this would onlywork against themselves, the danger of such ownership should not be disregarded since there is always apossibility that it may fall into the wrong hands and be used as a tool to manipulate world politics, whichwould not serve to anyone’s interest.1.4 Potential implicationsThe potential implications are far too great if the nuclear activity in North Korea is left to the status quoante. A nuclear armed North Korea is a destabilising situation which not only poses profound threat to theUS, its neighboring region, but also to the world at large. This is because, in addition to the threat of its ownweapons capabilities, North Korea is suspected to be a willing exporter of weapons and possibly nuclearmaterials through providing technology, fissile materials and ballistic weapons to rogue states, such asSyria12, or terrorist organizations or individuals13. Essentially, if business continues as usual, and if nothing is10 ‘North Korea threatens pre-emptive strike against the US’, USA Today, March 22, 2006.11 The Korean Central News Agency Report on one more successful underground nuclear, on May 25, 2009, www.kcna.co.jp.12 Israeli suspicions of the remote Syrian site, code-named Al Kibar, were verified by video images secretly acquired by Israeliintelligence. The images appeared to show the design of a reactor similar to the reactor at the North Korean Yongbyon plant, whichproduced plutonium for North Koreas nuclear weapons program. The video apparently also showed North Koreans working at theAl Kibar site. U.S. officials have said that Israel shared the video with them before the September 6th attack. See more in RobinWright, ‘N. Koreans Taped At Syrian Reactor: Video Played a Role in Israeli Raid,’ Washington Post, Thursday, Apr. 24, 2008; DavidE. Sanger, ‘U.S. Sees N. Korean Links to Reactor,’ New York Times, Apr. 24, 2008.13 Emma Chanlett-Avery and Sharon Squassoni compiled a list of potential range of possibilities made by analysts in, North KoreasNuclear Test: Motivations, Implications, and U.S. Options, United States Congressional Research Service, (2006)Li Li Chong, Student ID No.- 01107620 Universiteit Gent 2011-2012 5
  6. 6. Non-proliferation of nuclear weapons in North Koreadone to deter North Korea from further increasing or proliferating its nuclear capacity, we are impliedly‘stimulating’ the growth of nuclear black market activities. Furthermore, what is feared by most analystsand experts are the possibilities of North Korea fuelling a ‘nuclear arms race’ in Asia, in which theuncertainties of nuclear instability may create a cascading effect on other powers in the region14. If NorthKorea keeps conducting test and threatening its neighbours to use nuclear weapons against them; thiscould result in an undesirable scenario where the rest in the region may seek to develop its own nuclearweapons program in the face of a clear and present danger from North Korea. In these circumstances it isforeseeable that Japan, South Korea, China and Taiwan may try to derive legality to do so by defending15themselves from acts of aggression. Nonetheless, the potential implications are non-exhaustive, as it isuncertain how events would take turn, and the potential risks from such implications should not beundermined, as the consequences of inaction is far greater than anything but dire.2. Legal Framework and Legal Analysis of the role of international law2.1 The international law actorsThis essay seeks to evaluate the role that the United Nations (UN) has played in attenuating the risks ofnuclear weapons possession and proliferation, in verifying treaties and in creating tools of inspection in thename of achieving in international peace and security in the world. In this respect, the UN through theSecurity Council is empowered under Article 2(4) of the UN Charter to carry out duties for the maintenanceof international peace and security. In order to promote the establishment and maintenance ofinternational peace and security with the least diversion for armaments of the worlds human andeconomic resources, the Security Council shall be responsible for formulating, with the assistance of theMilitary Staff Committee referred to in Article 47, plans to be submitted to the Members of the UnitedNations for the establishment of a system for the regulation of armaments. This is was how the birth of NPTcame about –with the UN as the custodian of non-proliferation. At this juncture, as it is recognised theneeds and circumstances of the 21st century are constantly evolving, it is also pertinent that the UN’s roledoes not remain static, but is fully adaptable and useful as an instrument of the world’s peace and securityultimate guardian.2.2 The Nuclear Non-Proliferation Treaty (NPT)“As globalization continues to present new challenges to the non-proliferation community, innovativeapproaches that capitalize on its opportunities are also necessary16.”14 Ibid.15 Art 2(4) of the UN Charter, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence ifan armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary tomaintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall beimmediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Councilunder the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peaceand security.”16 Page 203, The United Nations and nuclear orders: Context, foundations, actors, tools and future prospects, UnitedNations University Press, 2009 6
  7. 7. Contemporary issues in public international lawForty years ago, the NPT17, perhaps the hallmark for the UN in the movement towards a nuclear-free worldwas set into place as one of the most important international security bargains of all time: states withoutnuclear weapons pledged not to acquire them, while nuclear-armed states committed to eventually givethem up. At the same time, the NPT allowed for the peaceful use of nuclear technology by non-nuclear-weapon states under strict and verifiable control. North Korea was in fact one of the 190 countries thatjoined the NPT up till it withdrew itself in 2003. Analysts view that the desirability of North Korea remainingin the NPT is noticeably related to its relationship with the US at any range of period of a point in time18.For instance, at the point when North Korea formed a somewhat unique relationship with the US, throughthe conclusion of the Agreed Framework under the Clinton administration19, prospects of North Koreamoving towards denuclearization were optimistic, with steps that would be taken gradually in stages. Then,an unexpected event took place in 2001, which drastically reshaped the principles of international law sodifferently as one who studies international law is introduced to President Bush’s justification of ‘pre-emptive war against terrorism’. As President Clinton left office, the spirit of the Agreed Framework alsofaded away with him, as President Bush clearly had another approach to the issue. Just as the mood underthe previous Presidency was strategically poised for making a progress with North Korea, matters took acomplete ‘U-turn’ the moment the cooperative mood changed into one of hostility and instability,beginning with labeling North Korea as ‘axis of evil’. The Agreed Framework contained a provision that“Both sides will work together to strengthen the international nuclear non-proliferation regime”, amongothers, to this North Korea agreed by doing the following: to remain a party to the NPT and accept itssafeguards agreement; to allow ad hoc and routine inspections with respect to the facilities not subject tothe freeze; and to come into full compliance with the safeguards agreement with the IAEA including takingall steps deemed necessary by the IAEA.One cannot help but wonder what if the Agreed Framework had been carried on consistently? Trying topresuppose what would have been the eventual outcome would not be of help now. However, one shouldalso not just see that case as a bygone, since many lessons can be extracted from that experience. Forinstance, in future talks involving different countries, analysts can derive and try to duplicate the successfulelements of the Agreed Framework which would have optimistically led to a better compliance with theNPT. One can also learn from this experience that diplomacy works best when both parties to thenegotiation try to be mutually sincere to each other. The author is convinced that as President Clinton hasreflected that successful diplomacy strategy has the power to make a difference, especially in internationallaw, where politics plays a large part in it. This claim is substantiated by the amnesty that was granted byNorth Korea to two American journalists as a result of a successful negotiation secured by President Clintonwith the North Koreans in 2009.17 The NPT was introduced by the International Atomic Energy Agency (IAEA) in 196818 Eric Yong-Joong Lee, ‘The Six-Party talks and the North Korea Nuclear dispute resolution under the IAEA safeguards regime’,Asian-Pacific Law and Policy Journal, Vol.5, (2004)19 Eric Yong-Joong notes that ‘The Agreed Framework was adopted as a compromise between North Korea and the United Statesafter painstaking negotiations under President Clinton and Kim Jong-Il. With the framework, the relationship of the concernedparties dramatically shifted from confrontation to a cooperative approach. With the Agreed Framework, both sides tried to solvethe two critical issues—freezing North Korea’s suspected nuclear weapons development program and normalizing the U.S.-DPRKrelationship—through a package deal.’ See more in Eric Yong-Joong Lee, ‘The Six-Party talks and the North Korea Nuclear disputeresolution under the IAEA safeguards regime’, Asian-Pacific Law and Policy Journal, Vol.5, (2004)Li Li Chong, Student ID No.- 01107620 Universiteit Gent 2011-2012 7
  8. 8. Non-proliferation of nuclear weapons in North Korea2.3 Article X(1) of the NPT –A Legal Lacuna?North Korea exercised its national sovereignty right under Article X of the NPT20 to withdraw itself from theNPT. Article X(1) of the NPT provides for withdrawal only if a party “in exercising its national sovereignty”decides “that in extraordinary events, related to the subject matter of this Treaty, have jeopardized thesupreme interests of its country”,.. which is then followed by a procedural condition of giving three months’advance notice to all other parties and to the Security Council, together with a statement of the events thestate regarded as having jeopardized its supreme interests. These procedural conditions in fact, have givenrise to legal questions as to whether given that North Korea had withdrew without fulfilling this proceduralrequirement, could the Council legally have had the power to block such a withdrawal? The response tothis would be analogous to a maze, except that this one wouldn’t have an exit. It is asserted that followingNorth Korea’s withdrawal, the parties to the NPT and the Security Council never seem to have acceptedNorth Korea’s legal position on its withdrawal21. However, despite this lack of legal recognition of NorthKorea’s purported invocation of its right to withdraw, the Security Council had deplored North Korea’sannouncement of withdrawal from the NPT, and acting under its enforcement capacity under Chapter VIIof the UN Charter, sought to ‘demand’ North Korea to immediately retract its announcement ofwithdrawal, return to the NPT and IAEA safeguards. This fact is in the author’s view slightly contradictory inthe sense that if in the first place the Security Council and the parties to the NPT did not accept NorthKorea’s legal position to withdrawal but still maintained the status list of the NPT, why would they then goon to ‘demand’ North Korea to ‘return’ to the NPT, if they were not recognized to have had even ‘left’ theNPT in the first place? In addition to this, there are also other several loopholes identified in the NPT suchas the ‘marriage’ of ‘two incompatible goals’ such as ‘atoms for peace22’ and ‘non-proliferation’ on theother, as noted by analysts –produced an odd juxtaposition. Although peaceful use of nuclear energy is an“inalienable right” under Article IV of the NPT, alarm bells are ringing about the absence of a crediblefirewall between peaceful and non-peaceful uses of nuclear energy.2.4 Analysis of the impact of Security Council’s resolutionsOver the years, UN sanctions23 have notably emerged as one of the most powerful tools that theinternational community can resort to in its quest to maintain international peace and security24. As aresult of North Korea conducting its nuclear tests in 2006 and in 2009, the Security Council responded withresolutions which not only demanded suspension of all related ballistic missile activity, but also imposedextensive sanctions measures on North Korea such as trade-related measures, financial sanctions andtravel bans. Needless to say, even though this sanction appears to be extensive, the intended goal of theSecurity Council is to maximize the impact by targeting coercive pressure on those suspected to be20 Article X of the NPT provides that, ‘Each party shall in exercising its national sovereignty have the right to withdraw from theTreaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme nationalinterests of its country, … giving three months notice to all the parties and the UN Security Council.’21 In fact, according to legal analysts, as a result of the Security Council not accepting North Korea’s legal position on withdrawal,North Korea has been continuously carried as a party to the NPT on status lists maintained by the official depositories of thetreaty, as well as in the lists carried on the records of the UN Department of Disarmament Affairs and the IAEA.22 The NPT can be accessed from http://www.fas.org/nuke/control/npt/text/npt2.htm (last accessed on 11 December 2011)23 Under Article 39 of the UN Charter, the Security Council is empowered to adopt enforcement measures in response to a threat topeace, breach of the peace, or act of aggression.24 Masahiko Asada, ‘A solution in sanctions’, March 2011 8
  9. 9. Contemporary issues in public international lawresponsible for the wrongdoing25, whilst at the same time to minimize unintended impact on the innocentpopulations. In this aspect, two out of the three resolutions on North Korea obliged UN member states tofreeze financial assets owned or controlled, directly or indirectly, by the persons or entities designated bythe Security Council’s sanctions Committee. In addition to that, travel bans were imposed on designatedpersons, and ‘requested’ UN member states to inspect cargoes from North Korea. The adoption of suchresolutions, also known as ‘smart sanctions’, is praiseworthy and laudable for such a creatively-craftedsolution. Indeed, shortly after the adoption of the last resolution 1874, the US Ambassador to the UN,Susan Rice praised the resolution as ‘unprecedented’ and ‘innovative’ and expressed that such sanctionsregime has “teeth that will bite”. Such specificities that have been given much deliberation as truly laudablein the context of evolving needs of the century.Notwithstanding the foregoing, sanctions no matter how creative or clever they are, can be evaded easilyby the designated entities and individuals by changing names or creating bodies that can act for or onbehalf of the designated entities. As for measures which require involvement of other UN member states,this would only hold effect if member states cooperate true to the spirits of the resolution. There were onlyabout four cases which successfully involved the seizure of arms and related material from North Koreancargoes. To illustrate the difficulty of enforcing such a sanction, one need not analyse all the cases, but lookonly at the seizure that took place in Thailand, whereby about ten or more different entities and countriesappeared to have been involved in a single incident of illegal transfer alone. This demonstrates that in fullysecuring the effectiveness of UN sanctions, only an orderly promulgation of coordinated internationalwillpower and effort is the answer to effective export control, cargo inspection and interdiction activities.Bearing in mind the above, sanctions can only work effectively if those at the forefront such as memberstates embrace and respect the spirit of international cooperation and collaboration. Thus, the adoption ofsanction resolution is not the end of the story, but rather, the beginning and this only suggests that withouteffective implementation and international collaboration, no matter how clever a resolution is formulated,it is of little force and effect.2.5 The International Court Justice’s (ICJ) advisory opinion –A Legal ConundrumAnother notable source of international law which may lend light to whether the use of nuclear weapons ispermissible in any circumstances under international law is the ICJ advisory opinion on this matter. Eventhough the ICJ firstly acknowledged that the threat of nuclear weapons would generally be contrary toapplicable treaties, humanitarian law, arms conflict control and customary international law, eventually,the ICJ decided that it could not definitively conclude whether the threat would be lawful or unlawful in anextreme circumstance of self defence, where the survival of a State would be at stake.The foregoing judgment which constitute a landmark decision in the realm of international law, may haveinadvertently provide countries to ‘recourse of nuclear’ in an ‘extreme circumstance of self defence’.25 This sanction also extended to financial transactions, technical training, advice, services or assistance related to the provision,manufacture, maintenance or use of such items. The trade-related measures also included a ban on the transfer of luxury goods tothe DPRK, a measure intended to have impact on the NK elites.Li Li Chong, Student ID No.- 01107620 Universiteit Gent 2011-2012 9
  10. 10. Non-proliferation of nuclear weapons in North KoreaHence, depending on how one reads this phrase, there is neither international law or customaryinternational law that contains “any comprehensive and universal prohibition of the threat or use ofnuclear weapons as such”.Even though the ICJ acknowledges the threat that nuclear activity poses to security and peace, they are notexplicitly prohibited by the international law, since it is ultimately justifiable in an extreme circumstance ofself defence. The judgment of the ICJ presents a legal conundrum for the use of nuclear weapons, on theone hand, the NPT seeks to achieve a nuclear-free world and on the other hand, another instrument ofinternational law implies that the use of nuclear weapons may be justifiable where the survival of a Statewould be26 at stake.2.6 Has international law in general succeeded or failed given what happened so far?“International regimes do not fail because of one breach, however serious or unacceptable. They fail whenmany breaches pile one on top of the other, to the point where the gap between promise and performancebecomes unbridgeable.” -Kofi AnnanA most frequently-asked question, given the existence and establishment of the international law above, iswhether this institutions have failed or succeeded27 in addressing the nuclear issue in North Korea. Inassessing this, it is pertinent to consider first what has already worked, to see if it is viable to build on thatsuccess.The NPT is stronger when member states are convinced that it is working and that nations can be countedon to abide by the rules. It is weaker when governments believe that the treaty is not working or is failing.A perception of failure encourages states to consider alternatives such as hedging and gives pro-nuclearbomb advocates an opening to make their case. Focusing only on failure is misleading, however, and runsthe risk of generating a spiraling crisis of confidence28. As one observer29 recently noted, “It has becomefashionable, yet again, to predict the collapse of the NPT….”. This general skeptical attitude30 is dangerousas it creates a vicious cycle. In such a spiral potentially dangerous cycle, a government begins to pull back26 The language employed here is ‘would be’ instead of ‘is’. The difference between the usage of the two phrases isthat the latter suggests element of ‘imminence’ as a condition to use nuclear as a self-defence, where as ‘would be’ isas a matter of literal interpretation, wider scope, more ambiguous and therefore maybe stretched by nuclear misusersand as an implication go against the intended original meaning and purpose that the ICJ may have had in mind whengiving out the judgment.27 Jim Walsh of Harvard University asked three questions in his paper – First, has the Nuclear Non-proliferation Treaty (NPT) been asuccess or a failure? Second, what accounts for this success or failure? Third, what do the lessons from the first thirty-five years ofthe treaty suggest, if anything, about how to address the problem of proliferation and in particular, the post-Cold War and post-9/11 challenges that confront the international non-proliferation regime? In the end, he comes to the conclusive analysis that theNPT has been ‘surprisingly successful’. Indeed, he opines that it is arguably the most successful arms control treaty in humanhistory. See more in Jim Walsh, ‘Learning from Past Success: The NPT and the Future of Non-proliferation’, Paper prepared for theWeapons of Mass Destruction Commission Stockholm, Sweden, (October, 2005)28 Ibid.29 Rajesh Rajagopalan, Will the NPT Regime Survive?, ORF Strategic Trends, 1:2 (October 6, 2003), Observer Research Foundation30 Jim Walsh notes in his article that for most observers and commentators, there is little debate regarding the success or failure ofthe NPT, where there is a long running, broad consensus that the NPT has failed, is on the verge of failure or will inevitably fail witha resulting cascade of proliferation. 10
  11. 11. Contemporary issues in public international lawfrom its commitments because of doubts about the treaty, which in turn is taken as evidence that thetreaty is weak and encourages other governments to follow suit. Jim Walsh prudently suggest that what isreally required is an objective assessment, rather than ignoring or hyping success. Statistically, one can seethat since the NPT, fewer countries have had nuclear ambitions, as fewer states seeking nuclear weaponstoday than at any point since World War II. On the other hand, the lack of enforcement provisions of theNPT has been a topic of particular interest to American analysts, where it is often seen as a critical flaw—the so-called “Achilles heel.” Can one conclude that North Korea has gone unpunished? This is hardly thecase, as North Korea as witnessed by the world, has been subjected to political penalties, economic andmilitary sanctions and even threatened with actual use of force. Hence, when North Korea launched itssecond nuclear test in 2009, it was interpreted by the world at large as an act of defiance againstinternational law in general for not taking heed of the Security Council’s resolution issued pursuant to itsfirst nuclear test in 2006.3. A tangled web of legal and political factors in international law3.1 Lessons from past experiences“Those who cannot remember the past are condemned to repeat it.” -George SantayanaThe historical tensions between North Korea and the US was first attempted to be resolved throughbilateral meetings between them in the 1990s which led to the adoption of the Agreed Framework31. Byvirtue of this framework, concluded between President Clinton and Kim Jong-il, a new relationshipdeveloped between the two countries. Article II of the Agreed Framework stipulated that “the two sideswill move toward full normalization of political and economic relations.” Another notable provision isArticle III which stipulated that both sides will work together for peace and security on a nuclear-freeKorean Peninsula. Article IV then goes on to read that ‘both sides will work together to strengthen theinternational nuclear non-proliferation regime’. Following these Articles, North Korea agreed to remain aparty to the NPT and accepted its safeguards agreement, and to allow IAEA to carry out ad hoc and routineinspections. Given the strenuous past and tense experiences between them, this Agreed Framework isindeed an epoch-making event. Not only they tried to achieve normalization in relationship, but alsoconstructive and concrete goals were explicitly expressed pertaining to the nuclear dilemma. Then, theunexpected happened, as the debris of 9/11 swept past the city of New York, the whole world was shockedinto silence, which shook the notion of peace and security that we hold valuably.As stated earlier, along with the transition from President Clinton to President Bush, so did the stancetowards North Korea change under President Bush’s regime. One can aptly describe that the cooperativerelationship that President Clinton tried to build on, flew out of the window, and so is the relationship built-up so far. The Bush administration was well known for its military policy of ‘eliminating the slightest31 Eric Yong describes the ‘Agreed Framework’ as the offspring of the resolution of the North Korean nuclear dispute. The AgreedFramework on North Korea’s nuclear program required that North Korea cease activities that could have given it a nuclear arsenalof 50 weapons by the decade’s end; in exchange, the United States and other countries promised to provide North Korea withalternative energy source.Li Li Chong, Student ID No.- 01107620 Universiteit Gent 2011-2012 11
  12. 12. Non-proliferation of nuclear weapons in North Koreaelements of North Korea’s military power’. This action immediately pushed back whatever relationship hadbeen established between the two countries to see déjà vu of the US’ hegemony at the height of theKorean War 50 years ago.The next question that ensue is – where do we stand today? Well, there is good news, and also bad news.The former being that this has been done before, so previous elements of success can be ‘duplicated’ in thecurrent re-initiation of the six-party talks in reigniting the engine of the six-party talks. The latter, being thatthere is much patching-up to do considering how talks have fallen apart before; and that relationship andtrust had been strained along the years. Consequently, we are now back to square one again. As for therelationship between the US and North Korea, only time will tell as the world now watches in anticipationhow President Obama will take the lead on. Whatever it is, one should bear in mind that the ObamaAdministration has much catching up to do, as he took over the baton from his predecessor with manyretracted steps. Stepping stones needs to be strategically planned out and carefully implemented to rebuildthe path towards an effective relationship.However, given that the past Agreed Framework was rolled out under President Clinton, there may be achance that Hilary Clinton, who is the Secretary of State of the US, who also happens to be PresidentClinton’s spouse, may be inclined to take the same route in dealing with North Korea.3.2 Six-party talks -the attempt at a multilateral security orderThe six-party talks originated as a result of North Korea withdrawing from the NPT in 2003. These talksinvolving China, Japan, US, Russia and South Korea, were formed to provide a platform for them to ‘coax’North Korea to come back to the NPT through dialogue. Such initiative was undoubtedly brilliant, but thediscussions held between them were nonetheless futile since they have been thus far not reached anyconsensus. Nevertheless, one should not completely disregard the experience from this accord, such as theanalysis of international reaction in approaching this matter. Given the differences in motivation,objectives, and the interests of these other five nations and their existing relationship with North Korea,this talk proved how difficult it is to appease everyone at the same time. Ideally, the most effective wayforward would be a unified and collective approach taken by all these 5 nations. As long as there aredivisions in opinion and cold treatment towards North Korea, and lack of willpower to compromise for astrategic common aim and goal, this six-party talks is bound to head for another round of failure, just likehow we have seen in the previous talks. The key lesson from this is to be able to draw the will of the sixnations through putting them altogether at the hexagonal table. As symbolically shown, this countries alldisplay different responses.Overall, US’s response towards this development of cooperation has been ad hoc and reactive, (rather thanbeing pro-active with pre-planned strategic objectives), and mostly crisis-driven, added with a lack ofcommon interests in the Northeast Asia. As described by O’Hanlon and Mochizuki, US policy toward NorthKorea in the last decade has been, for the most part, narrow and tactical , focusing on the crisis dujour rather than on a broader game plan32.32 O’Hanlon and Mochizuki, ‘Toward a Grand Bargain with North Korea’, The Center for Strategic and International Studies and theMassachusetts Institute of Technology The Washington Quarterly, (Autumn 2003) 12
  13. 13. Contemporary issues in public international lawThe participation of the Chinese is thought to be reluctant and defensive in general33. In this context, Chinais the only country perceived to be most trusted by North Korea, having a common communist historicalbackground. Initially, China is known to have given a degree of latitude towards North Korea despite beingaware of North Korean’s illegal drugs, weapons and counterfeiting trade. Nevertheless, North Korea’snuclear ambitions is drawing China’s agitation. However, eventhough China is not in favour of such agrowth of nuclear ambition in its neighboring soil, its approach to this matter is not be too pressing onNorth Korea. On the one hand, this is seen as a lack of action by the Chinese, on the other hand, someanalyst view this as China’s strategy of slowly building a confidence base with North Korea. As manyacademics note, China is not the biggest fan of US-led infamous interventions in the middle eastern region.Russia’s involvement can generally be perceived as not wanting to be left out of the equation and hopes toretain some form of control and influence over this matter. Comparing Russia and China, North Koreans hasmore faith and trust in the latter, thereby, Russia’s influence on North Korea has lost its grip.Of all the six-party countries, Japan is thought to be most committed party in carrying out the UN sanctionsand severing its ties with North Korea to a greater extent especially after the second nuclear test. Japan notonly restricts more of its outflow of Japanese personnel to North Korea, it also went to the extent ofamending its law to carry out inspections on cargoes originating from North Korea.South Korea, on the other hand, tries to avoid a further conflict with North Korea, thereby motivated to bemore of a ‘middle-power’, desiring only for reduced tension on the peninsula. This explains its pursuance ofmodest goals, such as approaching this with functionalism and moderation, in that it tries to diffuse thetension with its Northern counterpart through improving ties by way of expanding trade relations andfacilitating the movement of people between the two Koreas for the purpose of business cooperation.Since the North Koreans have not always been consistently in favour of having an official level talks withthe South, this ‘functionalist’ relationship has proven to be a convenient opportunity for North Korea todeal with the South.In a nutshell, one thing is for sure here: the most promising route to resolve the worsening nuclear crisis inNortheast Asia is for Washington, Tokyo, Seoul, and Beijing is forward as a kick-start to solve thisdenuclearization dilemma. In fact, this platform could be leveraged by all the parties involved to try to firstbuild confidence and base of trust. Deducing from the fragmented and different approaches taken by thecountries above, the author deems that the most plausible and realistic way forward is to follow thediplomacy route, characterized by a functional approach with the aim of building trust between the parties.In the long run, this is the most viable suggestion in attempting to reach a common solution that wouldbest serve the interest of all parties. In this regard, the biggest priority would be to gain North Korea’s trustenough so that it would feel secured and assured in gradually giving up its nuclear programs.33 Though in principle, the Chinese supports the idea of multilateral dialogues to promote mutual cooperation and understanding,in reality, they are extremely cautious at such meetings, especially if it is perceived to be intrusive to the Chinese’ sovereignty.Hence, this holds them back from openly presenting their views, more so if the topic relates to sensitive matters as regionalconflicts.Li Li Chong, Student ID No.- 01107620 Universiteit Gent 2011-2012 13
  14. 14. Non-proliferation of nuclear weapons in North KoreaAs proposed by Jishe Fen34, as simple as this may sound; sincerity is the most important ingredient inbuilding trustworthy relationship and mending the broken trust between the parties. Unfriendly rhetoricduring the process can only bring the negotiation process a step back instead of taking them forward. Inthis simple act of sincerity, policymakers would be able to provide a road map for the vital and ultimategoal of denuclearizing North Korea. Through the stages of implementation, each side would retain leverageover the other as aid would be provided gradually to North Korea while they would cut or eliminate itsweapons and reform its economy over time, thus reassuring each side that it was not being hoodwinked35.If it is going to convince North Korea to abandon its nuclear ambitions, it is only doable once North Koreafeels more confident and at ease to do so. In order to do this, the parties have to keep in their mind thehistorical conflict North Korea had with the US giving rise to its legitimate security concerns. Withoutestablishing trust or confidence, the parties cannot effectively move an inch towards reaching any goalscollectively.4. The potential solution4.1 Current development, six-party talks is revived againDespite the foregoing discussion, all hope is not lost for North Korea. Afterall, the platform for negotiationis there; the only thing missing is just a piece of puzzle to fit in to ‘reactivate’ the negotiation in the rightdirection. Certainly now, with the sudden change of leadership, the time is more opportune than ever forto convince the new leader to kick-start his leadership with improved international relations ties for thebetterment of North Korea’s prosperity which can be done in no other better way than through the six-party talks platform. In spite that much is not known about the characteristics and personality of the newleader36, it is hoped that he will pick up the six-party talks on where it was left, and return to the hexagonaltable that was reignited just before his father’s sudden demise.However, as long as tactics and strategies towards this negotiation remains unchanged, it is highly unlikelythat we will see any improvement in achieving denuclearization in North Korea. As already pointed outearlier, the impact of nuclear proliferation in North Korea is not in anyone’s interest, as the threat oversecurity and peace in the Northeast Asian region looms over dauntingly, especially in this period ofuncertainty for the political regime in North Korea. Besides that, the humanitarian problems in North Korearesulting from a repressive regime and lack of basic necessities are another huge concern for theinternational community, thus, leading to the world’s three largest international human rightsorganizations, Amnesty International, Human Rights Watch and the International Federation for HumanRights (FIDH), along with 40 other organizations from around the world, to launch a major global campaignon September 2011 to seek the establishment of a UN Commission of Inquiry to investigate crimes against34 Jishe Fen, ‘Seeking the best or the second best: Lessons learned from Six Party talks’, paper presented at the Third TrilateralMeeting on Nuclear Stability and Nonproliferation, King’s College London Centre for Science and Security Studies, October 200735 Ibid.36 See more at http://globalpublicsquare.blogs.cnn.com/2011/12/27/kim-jong-un-survivability-scorecard-what-to-look-for/ (Lastaccessed on 27 December 2011) 14
  15. 15. Contemporary issues in public international lawhumanity in North Korea. The longer the delay in attaining denuclearization in North Korea, we areincidentally prolonging the sufferings of the North Koreans, as the resources deployed by the North Koreaon its nuclear weapons could have been used for the citizens instead.4.2 Last resort- Military intervention?Amongst all the options laid on the table, is military intervention. However, this option is least desirableand is the very last resort that should only be considered in the event that all other options have been fully-exhausted and proven to have failed. In view of that, this point will not be discussed in detail. Theconsequences of igniting a ‘war’ in North Korea as a result of military intervention would see deaths ofmillions of innocent civilians37, and would only be a replay of the 1950 Korean war where history repeatsitself but this time with even worse catastrophic consequences as the scale of the disaster would be biggerand most likely affect its regional neighbours much to the regional neighbour’s worst fears. As noted byO’Hanlon and Mochizuki, any military strike at North Korea’s nuclear reactors and plutonium reprocessingfacilities at its Yongbyon site north of Pyongyang would be extremely risky in light of the possibility that alarger war would result38. The danger of intervening through military means could also possibly triggerNorth Korea to activate its nuclear weapons if it views that it has nothing to lose by doing so. Such an eventis beyond any imaginable comprehension. Nevertheless, most academics and observers view that such anevent is not a plausible scenario as North Korea will only jeopardize its own interest in acting in such a way.Coercion is certainly not the way to go in making North Korea change its policy.4.3 Functional Cooperation -Going beyond the nuclear issueOne of the viable and possibly most sustainable solution to achieving gradual denuclearization in NorthKorea is through a grand bargain solution via a functional cooperation methodology. Functionalcooperation in this context refers to O’Hanlan and Mochizuki’s view that by not fixating on just the nuclearprogram, ironically, a grand bargain is more likely ultimately to denuclearize North Korea and, mostimportantly, prevent any further development of North Korea’s nuclear inventory39. Beyond nuclear issues,both sides would cut the overall number of conventional forces as well as accompany those cuts with acommitment by South Korea, China, Japan and the United States to help North Korea gradually restructureand rejuvenate its economy40. China could provide technical help, in the light of its experiences over thelast 25 years in gradually injecting entrepreneurial activity and its own mode of capitalism into aCommunist economy.37 When the Clinton administration considered military action on North Korea’s nuclear facilities in 1993, the estimated humancasualties from an invasion was about 52,000 armies and nearly half a million South Korea soldiers dead or wounded, with anuntold number of civilian deaths. Also, it would be difficult to launch attack on North Korea’s nuclear facilities, given their talent forconcealing activities underground.38 O’Hanlon and Mochizuki, ‘Toward a Grand Bargain with North Korea’, The Center for Strategic and International Studies and theMassachusetts Institute of Technology, The Washington Quarterly, (Autumn 2003)39 O’Hanlon and Mochizuki, ‘Toward a Grand Bargain with North Korea’, The Washington Quarterly, (Autumn 2003)40 Ibid.Li Li Chong, Student ID No.- 01107620 Universiteit Gent 2011-2012 15
  16. 16. Non-proliferation of nuclear weapons in North Korea4.4 Could the answer lie in the European Union (EU) as a mediator?Despite that the idea of a ‘mediator’ has been occasionally propounded by experts and academics alike, it isnoteworthy that no mention has been made as to who should play this role. In this regard, it is believedthat the role of a mediator is crucial one, the choice made as to who should fit in this role must be thoughtvery carefully. In my view, the EU would befit this role best, as it is one of the most powerful bloc of nationsin the world. In this essay, the proposed solution would be to introduce an influential bloc of nations whichhas not previously been too involved in this matter to come into the picture to take on the role of a much-needed ‘mediator’ and moderator to reconcile the divergent stances of the 5 countries.The Treaty of Lisbon provides that the EU shall among others, contribute to peace, security, as well as tothe strict observance and the development of international law, including respect for the principles of theUN Charter41. It is proposed that the EU would be the best bloc of nations to advocate a pro-active and playa creative role in this dimension, by faithfully conveying messages to the parties of the six-party talks thatcannot see eye to eye, and to attempt bridging the gap among the confrontational issues. The EU is also agood choice geographically, as it is located in between the US and the Northeast Asian region. This proposalis much inspired by the EU’s success in having enlarged to as many as 27 Member States, and through this,the EU reflects considerable amount of valuable experience in negotiations and arriving at compromises.For the EU, this could be an opportunity for them to demonstrate its ‘Third World friendliness’ by taking animportant role which, if all goes according to what is envisaged, would also strengthen the EU’s reputationin the Asian region.The EU, being one of the world’s biggest aid contributor to developing nations should try to encourageNorth Korea to gradually give up its nuclear ambitions in exchange for economic aid to assist the countryout of poverty, to build a mutual base of trust with North Korea, and to help bridge the gap between NorthKorea and the world. If the EU comes into the picture, having a great deal of experiences in ensuring thatinterested applicants joining the EU must put in place the minimum requirement of human rights law, thismay well ‘kill two birds with one stone’.Through building confidence measures, and followed by ability and capability to sit and negotiate sincerelywith each other on the rights and obligations expected of one another. Conceivably, the EU possibly willhelp instigate a ‘functional mechanism’ by seeking a more normalized relations through economic andsocial means. Economists view that the potential economic benefits is massive if North Korea’s economy isopen-up to its regional neighbours, the US, and potentially the EU.Moreover, as North Korea is strategically located at the gateway between Asia, Russia and Europe which isalso sometimes dubbed by few as the Belgium of Europe would not only help attain the much-neededpeace and security in the region, but this could also help to pull the North Koreans out of poverty andfamine. By not merely fixating on the denuclearization issue, and through display of genuine concern overthe North Korean citizens’ welfare, this could lead to a more fruitful prospective negotiation where neither41 Article 3(5) of the Treaty of European Union, the Consolidated Treaty of Lisbon 16
  17. 17. Contemporary issues in public international lawparties perceive to be under any form of duress42. This ideal vision is operationally feasible, as theeconomic situation in North Korea can start improving right away through a trans-railwork linking Russia tothe Northeast Asian region. Once North Korea obtains consistent supply of oil, more businesses would beoperable and feasible in North Korea. With more openness, and businesses, it would slowly spur theeconomy, and soon its people will also move out of poverty and starvation. A more assertive role by the EUmay also put some pressure on the US to stop playing the ‘hegemonic’ role, but to participate by treatingitself equal as the rest of the world.4.5 How the EU can play the role of a mediatorThe EU, having its own ‘supranational nucleus’ due to its unique structure among others, is jointlycompetent with its 27 member states to carry out coordinated external actions. Even more so now, afterthe Lisbon Treaty that came into force in 2009, a new special portfolio has been specifically created to carryon this new function to reflect the EU’s common stance, and to give it visibility and influence, via speakingthrough one clear voice, instead of 27 muddled different approaches43. Besides that, for the first time ever,the Lisbon Treaty provides for a longer external action objectives compared to all its predecessors,including an explicit pursuance of common policies and actions in fields of international relations in orderto promote an international system based on stronger multilateral cooperation and good globalgovernance44. The first High Representative of the Foreign Affairs and Security Policy45, Baroness CatherineAshton who has the power to call the shots in foreign affairs matters, is rightly in position to lead theconfiguration in handling this North Korea matter. As the US counterpart is a special envoy appointed forthe North Korean mission, that would make the US counterpart of a ministerial level in the EU’s terms. Inthis regard, where the level of negotiation between the parties take place, Baroness Ashton would berightly and proper in position to represent the EU’s common voice on this matter.It is viewed that given this threat to security and the recurring human rights violation in North Korea shouldbe an alarm strong enough to warrant a diplomatic intervention by the EU at the six-party talks to play therole of mediator between those inherently divided on the North Korean issue. It is only when differencesare reconciled and harmonized that a strong and unilateral action can be effectively rolled out on NorthKorea, potentially speeding up the six-party talks which has been excruciatingly slow, to the detriment andexpense of the North Korean citizens. A stronger and more effective stance has to be taken on the42 Michael O’Hanlon and Mike Mochizuki, ‘Toward a Grand Bargain with North Korea’, The Center for Strategic and InternationalStudies and the Massachusetts Institute of Technology The Washington Quarterly, (Autumn 2003)43 In the interest of word limit for this essay, the detailed explanation on how the EU can play a role in this matter will not bedelved in. However, as a matters such as nuclear and weapons of mass destruction are of a degree of high importance in the EU,this would need the consensus of the European Council to be the impetus to Ms Ashton to be able to then take on this task withher EEAS. Under Article 15 of the Treaty of the European Union (TEU), the institutional role of the European Council has beenfurther clarified to be the driving force. In the exact wording of Article 15 of the TEU, “The European Council shall provide the Unionwith the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall notexercise legislative functions.”44 Article 21(2) of the Treaty of the European Union, the Lisbon Treaty45 The position of the High Representative is a new creature of the Lisbon Treaty, which makes the position unique as it is a hybridof the European Commission, European Council and the Council of Ministers. As this is a new post, the full-potential has not beenfully-exploited yet, but given the right mix of political leadership and pursuance of objectives, the EU has a great potential incontributing towards breaking the stalemate between the six-parties with a fresh and neutral viewpoint.Li Li Chong, Student ID No.- 01107620 Universiteit Gent 2011-2012 17
  18. 18. Non-proliferation of nuclear weapons in North Koreaenforcement of a potentially agreeable solution which would hopefully close this nuclear chapter in NorthKorea.It will also be advantageous for those in the North East Asian region to be able to be “contaminated” withthe EU’s unique notion of acting in the “community’s spirit” with the notion of “common interest” of theEU as successfully proven in the past.5. Further prospects and conclusions : An Opportunity in Risk“As much as risks can be avoided, dodged or denied, they are part of life and had better be managed.” - ‘Facing Risk’, Theme of the 42nd St Gallen SymposiumThe future of North Korea is beset with potential shocks that are uncertain whereby it really has no controlover such typical issues as factional infighting, a military coup, refugee flows, possible civil war, nuclearweapons at large and Beijing and Washington in disagreement or even conflict.46Even though the UN is a significant actor in this dilemma, assertively hailed as the ‘world’s organisation’(representing global interests as a whole), to effectively and durably cope with this threat to internationalpeace and security which has the potential to shake the very survival of humanity, we have to look beyondthat institution to seek that cooperative multilateral action.The roadmap to a complete denuclearization in North Korea is still a long way to go. This is due to the factthat this type of politically sensitive matter would only work in painstakingly gradual stages. As we havetried to understand the motivations behind the nuclear ambitions in North Korea, it is clear that NorthKorea which has been given the cold shoulders and politically hostile treatment over the years by the UShave destroyed the trust if any at all, that North Korea has for the US. Like it or not, whether it isconclusively definitely proven that North Korea holds destructive nuclear weapons is still a threat for theworld, as it is definitely certain that the nuclear tests launched by North Korea is assessed by the IAEAexperts to be equivalent to the impact of the impact of the Hiroshima and Nagasaki bombings. Despite thatthe safeguards regime under the IAEA, and the NPT47 have played pivotal roles in maintaining the peacefuluse of nuclear energy and in creating a restraint system on the use and development of nuclear weapons48,much work still needs to be done in pursuance of North Korea giving up its nuclear ambitions.The author believes and hopes that the idea of the EU acting as a mediator in upholding respect tointernational law principles of peace and security is a viable proposal, before the six-party talks commencesagain. It is also reiterated that this domain of North Korea deserves serious world attention and awarenessof what goes behind the curtains. It is high time to collaborate towards putting an end to the potentialnuclear crisis together not only for the sake of security and peace in the Northeast Asian, but also to seethis issue as an opportunity to address human rights derogation in that country.46 Andrew Salmon, ‘Why succession poses tough challenge for both Koreas’, BBC News, 20 December 201147 TREATY ON THE NON-PROLIFERATION OF NUCLEAR WEAPONS, July 1, 1968, (entered into force Mar. 5, 1970), available athttp://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc140.pdf (last accessed at 7 November 2011).48 Eric Yong-Joong Lee, ‘The Six-Party talks and the North Korea Nuclear dispute resolution under the IAEA safeguards regime’,Asian-Pacific Law and Policy Journal, Vol.5, (2004). 18
  19. 19. Contemporary issues in public international law5.1 Epilogue: What next for North Korea?For Washington, Beijing, Seoul, Tokyo or Moscow it will not be of beneficial to anyone’s interest to remainat loggerheads over this North Korean dilemma. Instead, they should now be on a common stand to aspireto maintain stability on the North Korean soil and the North East Asian region49. The time to strike a grandbargain with North Korea is now, as it would be a means for the ‘Supreme Successor’ to earn the loyalty ofthe military and the people of North Korea, chances are high for a change of the system to a certain extentwith the international community in order to be able to feed his people50. Consequentially, in order for himto obtain such kind of aid and investment from the international community, it is likely that in exchange forthat, North Korea will be insisted on making concessions toward giving up its nuclear weapons. Finally, areally sustainable win-win deal for all parties concerned is the only realistic way going forward.The EU could play a positive role to help by contributing to the process of making that happen soonerrather than later, as there is no doubt that time is the essence of what is next. BibliographyBooksEdited by Jane Boulden, Ramesh Thakur and Thomas Weiss, ‘The United Nations and Nuclear Orders’,United Nations University Press, (2009)Michael O’Hanlon and Mike Mochizuki, ‘Crisis on the Korean Peninsula: How to Deal with a NuclearNorth Korea’, McGraw-Hill, (2003)Journal Articles and ReportsMasahiko Asada, ‘A Solution in Sanctions: Curbing Nuclear Proliferation in North Korea’, March 2011Michael O’Hanlon and Mike Mochizuki, ‘Toward a Grand Bargain with North Korea’, The Center forStrategic and International Studies and the Massachusetts Institute of Technology, The WashingtonQuarterly, (Autumn 2003)Emma Chanlett-Avery and Sharon Squassoni, ‘North Koreas Nuclear Test: Motivations, Implications,and U.S. Options’, United States Congressional Research Service (CRS), (December 12, 2006)49 There is a faint possibility that North Koreas designated successor may try to consolidate his power by conducting a missileor nuclear test or launching a limited military attack. Undoubtedly, this warrants for Beijing and Washington to have an alignedcontingency plan in the event this occurs and how to maintain stability if such fears materialises.50 See more in, ‘North Korea Hails Kim Jong-un as Supreme Leader by Voice of America, Tibetan,http://www.voanews.com/tibetan-english/news/North-Korea-Hails-Kim-Jong-Un-as-Supreme-Leader-136394088.html (Lastaccessed on 29 December 2011)Li Li Chong, Student ID No.- 01107620 Universiteit Gent 2011-2012 19
  20. 20. Non-proliferation of nuclear weapons in North KoreaCole Harvey, ‘Major Proposals to Strengthen the nuclear Nonproliferation Treaty: A Resource guide forthe 2010 Review Conference’, Arms Control Association (ACA), (March 2010)Eric Yong-Joong Lee, ‘The Six-Party talks and the North Korea Nuclear dispute resolution under the IAEAsafeguards regime’, Asian-Pacific Law and Policy Journal, Vol.5, (2004)Jishe Fan, ‘Seeking the Best or the Second Best: Seeking the Best or the Second Best: Lessons Learned fromSix Party Talks Lessons Learned from Six Party Talks’, as presented at the Third Trilateral Meeting onNuclear Stability and Non Proliferation at Kings College London, (October 2007)Jangho Kim, in ‘Prospects for a Northeast Asian Multilateral Security Order and the United States’, TheKorean Journal of Defence Analysis, Vol. XVII, No.3, (2005)Clara Portela, ‘The Role of the EU in the Non-Proliferation of Nuclear Weapons: The Way to Thessalonikiand Beyond’, Peace Research Institute Frankfurt (PRIF) Reports No. 65 (date of paper notascertainable, but 2003 onwards)Sung-Han Kim, ‘Searching for a Northeast Asian Peace and Security Mechanism’, Asian Perspective,Vol.32, pp.127-156., (2008)Elizabeth Bakanic, Mark Christopher, Sandya Das, Laurie Freeman, George Hodgson, Mike Hunzeker, RScott Kemp, Sung Hwan Lee, Florentina Mulaj, Ryan Phillips, ‘Preventing Nuclear Proliferation ChainReactions: Japan, South Korea and Egypt’, Princeton University’s Woodrow Wilson School of Public andInternational Affairs Report, (January 2008)Frederic L. Kirgis, ‘North Korea’s Withdrawal from the Nuclear Non proliferation Treaty’, The AmericanSociety of International Law Insights, (January 2003)Beomchul Shin, ‘A Review of the legalities associated with a sudden change in North Korea’, IIRIWorking Paper Series, (2006)Goohoon Kwon, ‘A United Korea? Reassessing North Korea risk’, Goldman Sachs, Global EconomicsPaper No.188, (September 2009)Jim Walsh, ‘Learning from Past Success: The NPT and the Future of Non-proliferation’, Paper preparedfor the Weapons of Mass Destruction Commission Stockholm, Sweden, (October, 2005)Lisa Tabassi and Jacqueline Leahey, ‘The Treaty on the Non-Proliferation of Nuclear Weapons: TakingStock after the May 2008 Preparatory Committee Meeting’, The American Society of International LawInsights, Volume 12, Issue 14, (June 2008)Daniel Joyner, ‘North Korean Links to Building of a Nuclear Reactor in Syria: Implications forInternational Law’, The American Society of International Law Insights, Volume 12, Issue 8, (April2008)Christopher J. Le Mon, ‘Six-Party Talks Produce Action Plan on North Korean Nuclear Disarmament’, TheAmerican Society of International Law Insights, Volume 11, Issue 5, (March 2007) 20
  21. 21. Contemporary issues in public international lawLisa Tabassi and Jacqueline Leahey, ‘The Treaty on the Non-Proliferation of Nuclear Weapons: TakingStock after the May 2008 Preparatory Committee Meeting’, The American Society of International LawInsights, Volume 12, Issue 14, (June 2008)Report by Mr. Weston S. Konishi, Associate Director of Asia Pacific Studies, ‘Denuclearizing NorthKorea: Exploring Multilateral Approaches to Risk Reduction and Peace Regime Building’, a publication ofthe Institute for Foreign Policy Analysis, (September 2011)Li Li Chong, Student ID No.- 01107620 Universiteit Gent 2011-2012 21

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