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Pyongyang and Proliferation: The UN North Korea Resolution

JURIST Guest Columnist Anthony D'Amato of Northwestern University School of Law says that the recent UN Security Council resolution on North Korea passed in the wake of its nuclear test is a precedent-setting instance of aggressive collective action against would-be nuclear proliferation that could impact Iran, Israel, and other potential nuclear weapons states...


The UN Security Council’s resolution on North Korea’s nuclear weapon test is a magnificent achievement. The US State Department deserves much of the credit not only for the text of the resolution but also for the skillful diplomacy, headed by Secretary Condoleezza Rice and Ambassador John Bolton, that has resulted in the fifteen-nation Security Council’s unanimous vote.

A. The Global Question

Before we get into specifics, a broad question that can be asked of this resolution is how can North Korea be legally forbidden to attain nuclear weapon capability when seven or eight states have already have arrived there? (The members of the “have” nations are the United States, Great Britain, France, China, the Russian Federation, India, and Pakistan; Israel probably has nuclear capability but denies it.)

The Resolution in its Preamble provides two answers to this question, the first of which is spurious but the second substantial. The spurious answer is that North Korea’s underground nuclear test of 9 October 2006 constitutes a “challenge” to the Treaty on the Non-Proliferation of Nuclear Weapons. However, North Korea has withdrawn from the Treaty. What is the point of calling a withdrawal from a treaty a “challenge” to the treaty? Under international law, a state party to a treaty has a right of withdrawal except for those few treaties that by their terms bar withdrawal: for example, treaties of peace do not permit withdrawal. As for the Non-Proliferation Treaty itself, it specifically provides for withdrawal in Article X.

The Resolution redeems itself by its second answer. North Korea’s decision to move from a have-not nuclear weapon nation to a have, poses a danger “to peace and stability in the region and beyond.” The Security Council therefore determines that “there is a clear threat to international peace and stability.” This “clear threat” phrase brings the Resolution under Chapter VII of the United Nations Charter, legally authorizing the Security Council to take “measures” against North Korea, The “measures” are of two kinds, to which I will refer in a moment.

We have here a most interesting theoretical situation: does international law follow “precedent” the way common law does, or is it possible for international law to draw a line after 7 or 8 precedents and then say “no more.” What kind of strange “law” would it be to say that a tort case involving a Cadillac in 1990 is not a precedent for a similar tort case involving a Mercedes in 2000?

I take credit or blame, as the case may be, for introducing this peculiar problem of precedents in international law in an article I wrote way back in 1967 on the legality of French nuclear tests in the South Pacific. I argued then that even though the United States had conducted nuclear tests in the same region, the US tests were not a precedent for allowing the French tests because the radioactive damage to the environment would be cumulative. In other words, the first test can do major but biologically recoverable damage; the second test could destroy ocean life in its entirety. In cases of environmental damage where there may be a sustainable threshold of survival, I argued that strict legal “precedent” may be inapplicable.

I contend that it would be irrational for international law to say that if we are given seven or eight precedents of “have” nations, then the number must be legally extendable by operation of precedent to 190 nations. At the moment we have stability, but would we have stability if 190 nations could each destroy the others? Sometimes when astronomers report a supernova in the sky, I wonder if the explosion isn’t the result of a planet whose inhabitants have reached roughly our own level of civilization and development, and among whom a hydrogen-bomb war broke out destroying their entire world. I often wonder whether these celestial explosions are indeed frequent, and whether our Earth may soon join the series. If it happens, we won’t feel a thing.

International law should not be a recipe for planetary destruction. It follows, I would suggest, that the Resolution on North Korea is a milestone that is connected to our own self-preservation — including the self-preservation of North Korea!

It is a milestone because its implications extend beyond the case of North Korea. The Security Council has now committed itself to take similar aggressive action against Iran if and when Iran tests a nuclear weapon Had the Iranian case preceded that of North Korea — as it looked like it might a few months ago — it would have been highly unlikely for the Security Council to have acted as boldly as it has now done. The new Resolution will also impact Israel. If Israel should decide to test its nuclear weapons, or even declare that it has them, it would be hard for its few friends on the Security Council to distinguish the Israeli case from the North Korean case. Instead they would be under strong legal pressure to decide that Israel’s nuclear weapon is, in the language of Preamble to the North Korean Resolution, “a clear threat to international peace and security.” This decision, in turn, would invoke the full powers of the Security Council against Israel, including the power to use force.

B. Measures

The full range of measures [1] short of armed force are available to the Security Council under Article 41 of the Charter. (Article 42, providing for armed force, is left for further decision by Paragraph 16 of the North Korea Resolution.) The Resolution imposes on all Member States of the UN to prevent the direct or indirect supply of weapons and spare parts to North Korea. Included are tanks, armored combat vehicles, large calibre auxiliary systems, combat aircraft, attack helicopters, warships, missiles, and missile systems. Additionally banned are any items or materials that could contribute to North Korea’s nuclear-related or WMD-related programs. All technical training, advice or services pertaining to the banned items are also prohibited.

Not only does the Resolution ban the above-mentioned items from going in to North Korea, but it also prohibits them from coming out — in other words, an embargo on North Korean exports. This may seem peculiar: why should the United Nations care if North Korea exports missiles when doing so would simply leave North Korea with fewer missiles? My guess is that this is a very shrewd and realistic provision. Suppose North Korea builds a factory to produce a new long-distance missile. Once built, the factory can turn out many additional missiles at marginal cost. If these extra missiles could be sold abroad, the factory could recoup its capital expenditures. (North Korea has indeed been selling missiles on the world market.) By placing an embargo on armaments exports, the United Nations has made it perhaps prohibitively expensive for North Korea to set up a factory to produce just the limited number of weapons it can use itself.

Another shrewd and realistic provision of the Resolution is the ban on Member Nations’ exporting luxury goods to North Korea. With most of its people at the sustenance level, one may wonder whether North Korea imports any luxury goods at all. The answer is that Kim Jong-il uses luxury goods as gifts to his close advisers and officials. He rewards them with Mercedes and BMWs, fine cognac, and Cuban cigars—items that money can’t buy in North Korea. The Resolution’s ban on luxury goods (even though that term is not defined) indicates a seriousness of purpose in putting the squeeze on the leaders of North Korea.

The Resolution does not call upon Member States to inspect all goods destined for North Korea. Inspections are up to the Member States; the Resolution obliges them just to “prevent” exportation of the banned items to North Korea. Similarly restrictive is the Resolution’s failure to require nations to prevent banned items from being shipped to North Korea on the high seas in vessels other than their own flag vessels. (The Security Council clearly has jurisdiction to infringe upon North Korea’s right to freedom of the seas if there is a threat to the peace.) China, one of the last holdouts on the various drafts of the Resolution, in particular seems reluctant to press North Korea. It has announced that it will not make inspections on the high seas.

More critical to the international community is the 800-mile border that China shares with North Korea. An hour after joining in the Council vote for the Resolution on Saturday, October 14th, the Chinese ambassador, Wang Guangya, said China would not participate in the inspection regime because it would create “conflict that could have serious implications for the region.” However (thanks to the instant reporting of world news these days) China has begun inspecting all trucks and other vehicles crossing the border into North Korea. “Watch what we do and not what we say,” Attorney General Mitchell once advised the American public during the Nixon Administration. This same admonition might also apply to China today.

C. What Will North Korea Do?

The question whether the Resolution will force North Korea to quickly give up its nuclear weapon program is the issue that preoccupies the media. To my mind it’s less important than the precedents set, and the coming-together of the Members of the Security Council, that I have discussed above. North Korea’s nuclearization program has been an economic disaster; the new Resolution will make it even worse. North Korea knows that if it ever actually uses any of its nuclear weapons on China, Japan, or Alaska, it will immediately be reduced to radioactive rubble by American nuclear missiles.

Thus I submit that the new Resolution is not really about North Korea, it’s about non-proliferation. And the latter, I think, is the most important issue facing the human race.

Notes

1. I’m glad the UN uses the word “measures” instead of the word “sanctions” which one sees in every other editorial in the New York Times. “To sanction something” means either to approve it or prohibit it. How could such an internally inconsistent word ever have entered into serious discourse? Maybe the Times’s neutrality-striving editorial writers like it because it simultaneously allows them to approve and prohibit whatever they are talking about.



Anthony D.Amato is Leighton Professor of Law at Northwestern University, where he teaches international law and human rights.


October 17, 2006


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Comments:

Regardless of the UN Security Council's position on North Korea's apparent acquisition of nuclear weapons there seems little the world could do against the hermit kingdom at this point. Not being a lawyer but a physicist and engineer, it is inconceivable that non-proliferation is a sustainable goal. The technology for nuclear weapons is decades old and (while difficult) the basic concepts are not beyond the reach of any team of dedicated and well trained scientists.

As time passes on it is inevitable that all states will eventually obtain this coveted weapons technology. Certainly if the states are allowed to develop the weapons independently and without incidents caused by men like Abdul Khan, within one hundred years it should not be too far fetched that fifty or more nations will obtain nuclear weapons. The major concern is that one state will export this technology as knowledge and / or an end product that other states and organizations can use.

The argument that possession of such weapons by this communist regime undermines peace and security is mere posturing. To date we (the United States) are the only nation that developed and utilized two nuclear devices on foreign soil in an act of war. Based on history alone the United States is singly the most dangerous holder of nuclear weapons to date. We have not only shown ability but the resolve to use these catastrophic weapons.

While the argument was forwarded that there is an irrationality to allowing a stable world of a few nuclear states to evolve into an unstable world where many nuclear states exist was made, I contend that the statement is biased and one sided. Stability is a perceived state of affair and I would wager heavily that embattled nations such as Iran and North Korea see the world tilting very much in favor of those who can leverage nuclear weapons. The world to them is very much unstable. They have historical precedence to argue this as well.

The United States stands firm against North Korea and Cuba as communist nations but this resolve buckles when nuclear holder China is at the table. When India and Pakistan decided to become nuclear states, similar posturing as North Korea was made and yet now, Pakistan is a valued ally in our war on terror and India and the United States are doing a lot of business together.

International law is not a recipe for planetary destruction; it is the fuse that will lead us there. Nations who are forcing their will on other nations through these measures will merely breed resentment and animosity. To naively believe that the United States will not veto any measures on a nuclear capable Israel is the same as believing that Iran and North Korea will not point to the unequal treatment of these states once it occurs or that politicians will say that "it's a different matter."

An armed response into a nuclear state will be nothing short of disastrous. If only one nuclear weapon is detonated by North Korea, the United States or others will react in kind. Radioactive fallout and contamination of the region will be wide spread. Many will lose their lives in seconds and millions will be affected in the short and long term over the entire region.

The political impact of nuclear war with North Korea will surely hurt the United States more than a small country waging a nothing-to-lose war. Worse yet is the political impact if North Korea decides to punish the world by bombing nearby countries. Imagine the growing angst against the US if a nuclear weapon detonates over Seoul, Beijing, Tokyo or any other major city as punishment for allowing an invasion.

The ban itself removes luxury items from their leader’s hands but makes life unbearable for a people who are brainwashed into believing that we are their enemies. The propaganda efforts in North Korea will continue, and any armed invasion will be met similarly if not worse than Iraq.

I contend that international law; despite it’s illogical inconsistencies could press forward and resolve this problem. By convincing the United States to talk with North Korea, the two countries could resolve their differences. A nuclear armed North Korea could be slowly introduced to western methods and beliefs with the help of its communist friend China. The world should now accept that the DKRP has nuclear weapons and continued posturing will only make things worse. Economic growth and prosperity would go further in dissuading North Korea from proliferating weapons as the need to would evaporate.

It is only logical now that we share with them our technology for cleaner nuclear technology to prevent radioactive pollution in their country. We should talk with them and persuade that (as we did with Russia) that only a certain number of bombs should be manufactured. We need to bring North and South Korea closer together to not only recognize each other as states but to open their borders to allow families to see each other. Only when we begin treating other countries as equals will we start to solve the real problem, which is not the non-proliferation of nuclear weapons, but hatred and fear of our fellow man.

All of the nuclear and modern non-nuclear states are in a prime position to show countries like North Korea an enlightened example. I am afraid "holding the course" will turn North Korea down a darker path. Let them have their guns if it makes them feel safe to come out and say hello to the rest of the world. North Korea, like China and many others did, will learn that there is no real point to a nuclear arsenal since the United States already has the capability of destroying the entire world many times over already.

Instead of angry posturing against nations who do not agree with us, perhaps diplomacy will assist us in shaping a safe and truly stable world.

October 17, 2006  

I don't mind it when a physicist-engineer tells us what international law can do and what it can't do. Indeed I find it fascinating that international law can "convince" the US and North Korea to talk with each other. I don't know how international law makes people talk, or grabs them by the collar and forces them to negotiate, but if a physicist who is also an engineer tells us this is one of international law's capabilities, maybe it somehow can be done.


What does bother me a little is when a physicist-engineer demonstrates less than an undergraduate's knowledge about physics or engineering. The commentator tells us that stability is a mental state. There are billions of physical systems in the world, as he surely should know, whose stability or instability has nothing to do with they way they perceive things. What about Vermont, a state that wants to abolish US taxes? Maybe everyone there is insane and wants to destroy the world. Does that mean that Vermont is unstable? Or more to the commentator's point, does it make no difference at all if Vermont is given nuclear weapons?

October 17, 2006  

International law may not convince the US and North Korea to sit and talk things out. But international law is used to pressure individual countries to capitulate to the will of a global community of countries. Sometimes this pressure works, sometimes it does not. Using this type of method solely to help dismantle a nuclear weapons program, stop genocide, release hostages and/or prisoners seems limited in scope. These things simply correct negative actions. I (and this may be wrong) have yet to see international law being used in similar fashion to create positive actions. One example would be to encourage peace talks. Either negotiate peacefully or measures will be applied to you.

I may not have made it clear when I used the word “perceived” and being that science and scientists (myself included) often make one particular mistake when we use animism in describing a physical system, so for that I apologize. It would do any readers good to clear it up here. Physical (non-biological) systems do not perceive anything. They do not want to do things and they do not understand what they are supposed to do. They in short; are not alive. When a boulder falls from the side of a mountain, it does not access a universal set of physics books and start calculating where it should go before it hits the ground and stops. It simple goes and it is a scientist’s job to somehow mathematically describe the boulder’s action in order to predict future events of boulders tumbling down the sides of mountains.

When a physicist teaches and says something like, “The boulder wants to fall because of gravity” or “Gravity wants the boulder to come down the mountain and hit the ground” this is technically not a good method of describing a physical system. Neither sentence is factually truthful. It is just easier conceptually to grasp and it is up to the student to realize and look past these comments.

To perceive requires an observer. The observations can often be wrong, as was the case when astronomers believed in the geocentric model (the earth at the center of the universe, with all things revolving around it). Another instance of faulty observation can be demonstrated when a chemistry professor places a beaker of water in a vacuum chamber and causes the water to boil at room temperature. If he or she records the water boiling and fails to tell the pupils that the beaker is in a vacuum chamber, students almost always believe the water is at least 100 degrees Celsius once they see it on a video.

When I used the word “perceived” in my original comment it referred to the observers. While western observers perceive the world to be stable with its current nuclear weapon holders, North Korean and Iranian observers may perceive the world in a different manner. This certainly does not mean that North Korea (or the United States) is correct in their observations, but the observation has allowed the parties to come to these conclusions. I did not mention a physical system at all and in writing about one I would certainly try and avoid attributing any spiritual properties to it.

That being said I would disagree with the statement about system stability. Stability and instability of a system has everything to do with the world about them. Allow me to illustrate. I take a metal container and fill it with a heat sensitive accelerant, nails and other sorts of sharp things, pump in a little air, seal it and hand it to a gentleman who can “perceive” that the system I handed him is very stable at the moment. I then ask him to walk closer and closer to a raging forest fire holding said container. While the system itself perceives nothing, the man may understand that if the temperature gets too high the container will destabilize, explode and likely kill him. Unless he is suicidal, he will stop and refuse to approach the fire. If he is naïve then I must tell him to stop before he goes too far or I would be guilty of killing him. Stability in this case is temperature dependent.

The stability comment was similar to the original author’s comment about novas and supernovas being puffs of suicidal societies we observe here on Earth. The thought is superficial (and verbally artistic) but points out a dramatic example of how such thinking can be wrong. While car engines and airplanes and toaster ovens seem safe and stable, they all succumb to entropic forces eventually and thus can only be said to be stable within a particular window of time, nothing more. A nuclear war on a far away planet would not be detected in a single burst but likely spurts of very tiny amplifications of the stars normal energy output. Whether we even have the technology to resolve such a “small” amount of energy release is questionable. It would probably be mistaken as sensor noise amid the background radiation of the star the planet was orbiting.

Let us speak on the Vermont scenario now. Taking international measures to its logical conclusion, because the state does not agree with the norm perhaps it would be wise to apply measures against them similar to North Korea. Economic embargoes can be applied and ships along Lake Champlain can be searched to ensure compliance with this embargo. A joint agreement with the Canadian government could be made to inspect any cargo carrying vehicle into this hermit state. Until Vermont agrees with the rest of the United States, we shall also limit the importation of luxury goods to punish the leaders. I am sure one sees how silly such actions would be. Certainly I would be surprised if other states failed to defend Vermont’s right to think differently than the rest of us.

North Korea is in a similar (albeit a more serious) situation. They disagree with the remainder of the world about their nuclear ambitions. They in fact carry the heat sensitive container and have begun to walk towards that raging fire. We could allow them to walk their path in solitude and hope they realize the danger they are in before something catastrophic occurs. Or perhaps the US could magnanimously arrange for North Korea to responsibly enter the nuclear club.

China and Russia were not bastions of freedom and democracy when they joined us (and still are not), but they understood the dangers they faced and slowly these countries are changing to accommodate the needs of the global community. It is not perfect and certainly not as fast as most would like it, but continued and small exposures to outside influence will eventually wear down the walls that separate us. So it was with them, so it can be with North Korea. After all if we survived McCarthyism and the Cuban Missile Crisis with forces opposing us as daunting as the Soviet Union, surely North Korea does not pose such a severe threat that the United States must deal so harshly with them.

So while physical laws cannot be argued with (or broken) man-made laws can be modified for better or worse. Law is unique in that it guides society and international law guides a global society. If these laws are formulated and implemented with good enough forethought they may be used to shape a future that is acceptable to the global community. Interdisciplinary discourse such as this is hopefully a method that can be used to open new ways of thinking. It is too bad that when one field shows an interest in another field (take econophysics) that almost like two ant hills, posturing begins and a war is almost inevitable.

October 18, 2006  


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