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

Contemporary issues in public international law

Li Li Chong, Student ID No.- 01107620 Universiteit Gent 2011-2012 1

The role of international law in non-proliferation of nuclear weapons in North Korea:

The search for a grand bargain solution continues1

1. 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 .............................................................................................................................................. 5

2. 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? ................. 10

3. 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 ............................................................... 12

4. 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 ................................................................................................. 17

5. Further prospects and conclusions : An Opportunity in Risk ................................................................................... 18

5.1 Epilogue: What next for North Korea? ........................................................................................................... 19

Bibliography ....................................................................................................................................................................................... 19

1 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 Bargain solution with North Korea’, The Washington Quarterly, Autumn 2003

Non-proliferation of nuclear weapons in North Korea

2

Abstract

The question of threat to peace and security from nuclear weapons has been lingering around for 50 years since the world witnessed the devastation of World War II. However, it rose to prominence recently, in particular, the risk of North Korea holding on to their nuclear weapons, not knowing the fate of its usage is becoming more prevalent today. Coupled with uncertainties that surround its future, North Korea certainly deserves special attention, more so with the sudden demise of its long-standing ‘Dear Leader’ and as power transition 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 North Korea is inspired to keep to its nuclear ambitions, and to make an analysis on how international law has fared in curbing this issue. Likewise, this essay also endeavours to draw an analysis by looking at the various potential solutions that can complement the role of international law and how best to convert this nuclear security risk into an opportunity.

It is our opportune moment to address this problem as a global concern. Consequently, it is crucial for all corners of society to learn from past lessons, address this problem via an effective international global cooperation mechanism and delicately manage this situation.

The last section presents some final reflections and proposes to complement political cooperation with international law as it becomes more recognized at the turn of this century that pursuance of an international objective would be more difficult where there are misalignments in political goals and objectives. More efforts should focus on achieving political unity in willpower. In confronting the interplay of 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 to achieve the desired political unity.

“In our interconnected world, a threat to one is a threat to all, and we all share responsibility for each other’s security. If this is true of all threats, it is particularly true of nuclear threat2 ”

-Kofi Annan

2 Statement made by Kofi Annan, the United Nations Secretary General, in the address made at the Nuclear Non-proliferation

Treaty review conference on May 2005 in New York.



1. Introduction

1.1 Prologue

As a starting point, it is noteworthy that December 2011 has seen numerous historical events taking centre stage in the world. On one side of the world in Europe, amidst the financial turmoil, Croatia signed the Accession Treaty with the European Union on 9 December 20113, and on the other side of the world, we witnessed the mixed reactions to the recent demise of the North Korean’s ‘Dear Leader’ which on the one hand, swept the country with grief and on the other hand, others watching from outside of North Korea are filled with anxiety over the fate of the country. Kim Jong-il's sudden death certainly leaves an uneasy legacy and whether this could be a 'turning point' or ‘breaking point’ for North Korea depends on his son, Kim Jong-un4. It is optimistically hoped that there will be a peaceful and stable transition to a new leadership and that Kim Jong-un will better recognize the need of better engagement with the international community. In January 2011, Robert Gates, the then defense secretary of the United States of America (US), warned that North Korea was within five years of being able to strike the continental US with an intercontinental nuclear ballistic missile5. Though no sources can be found to base this statement, this may be one of the reasons why the US re-ignited talks with North Korea. In October, Stephen Bosworth, a top US envoy on North Korea claimed that some progress “moving in a positive direction” has been made during talks over North Korea's nuclear program. It is expected that the new leader will pick up where the previous leader left on. The world now anticipates a better progress in this area, and if a “solid and sincere foundation” can be built based on enhanced trust and confidence, this can be a start to put a rest on this nuclear threat from 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’s personal view and analysis that international law cannot be purely assessed in its legal dimension, but must also be complemented by the political dimension.

1.2 Definitions and explanations on North Korea’s involvement in nuclear activity

Nuclear non-proliferation in this essay is defined as a need of the prevention of nuclear increasing or spreading. The Nuclear Non-proliferation Treaty (NPT) which is at the forefront of this issue aims for, states without nuclear weapons to pledge not to acquire them, while nuclear-armed states to commit to eventually giving them up. For the past decade, North Korea presented numerous challenges to the global non proliferation regime. Historically, nuclear weapons have been detonated only twice, wiping out the cities of Hiroshima and Nagasaki, and thus ending World War II, but marking the beginning of the nuclear age. It wasn’t long after the horrific atomic explosion that we entered into another era, the Cold War period with the threat of nuclear annihilation hanging over mankind6. Needless to say, nuclear threats remain since then until

3 This will pave the way for Croatia’s full membership into the EU block by July 2013.

4 Kim Jong-il's death: an uneasy legacy Whether Kim Jong-il's death really is 'turning point' for North Korea depends on his son, and

the country's 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 15

December 2011) 6 Although nuclear weapons are gradually becoming prohibited under international law, they remain a critical issue in post-Cold

War regional and world politics. As North Korea launched its nuclear weapons development program in the early 1990s, the

http://www.guardian.co.uk/commentisfree/2011/dec/19/kim-jong-il-death-legacy?INTCMP=ILCNETTXT3487

http://www.guardian.co.uk/commentisfree/2011/dec/19/kim-jong-il-death-legacy?INTCMP=ILCNETTXT3487

http://www.guardian.co.uk/world/2011/jan/11/north-korea-america-robert-gates


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today7, even though the Cold War officially ended in 1990s, but as long as countries remain in possession of them, and expresses intention to use them as a weapon of attack, is still a risk at large. The reason being that non-proliferation of nuclear weapons should be in our radar of concern is because the catastrophic nature of a nuclear disaster, whether intentional or unintentional, are known to be of such grave magnitude to humankind as it would cause deaths of thousands of lives in an instant and many more would suffer or die from exposure to radiation. That is only an inevitable immediate foreseeable consequence. In fact, 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 is not just a national concern for North Korea, but is also a regional and global concern. Henceforth, the responsibility lies not just in international law nor in the regional players concerned alone, but rather –a bold 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 mind

Nuclear development in North Korea is not an alarmingly new recent phenomenon8, though it only first gained international attention after the launch of its first nuclear test in 2006 and, in a seemingly act of defiance against the United Nations, North Korea conducted another nuclear test in 2009. Despite having been subjected to punishment by way of Security Council’s resolutions, it is well-known that those international sanctions and international law repercussions did not hold North Korea back from carrying out its second nuclear test in 2009, being well-aware of the full-blown negative international reaction to its conduct. Given this understanding, before delving in the issues, it is pertinent to try9 to identify the potential motivation behind North Korea’s nuclear ambitions and what they are trying to accomplish by developing 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 which has led them to where they are today. In this essay, my aim is to show how the historical background leads to 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 Japan in the Far East, served the US as the perfect location to indirectly attack Russia without directly confronting it. 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, those two parties ‘ended’ that period of conflict through an armistice signed in 1953. But that was not before

nuclear conflict escalated as a political issue in and around the Korean peninsula. Both sides have worked through a painstaking process to reach a consensus for the denuclearization of the Korean peninsula, but have found no ultimate solution yet. See more in 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 Journal

of Defence Analysis, Vol. XVII, No.3, Winter 2005) argues that the current post-Cold War era is being prolonged, as well as having such a fluid character, and views that the future would depend much on how the relationship between North Korea and the US is managed. 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 is well suited to produce plutonium, and is the logical option for aspiring nuclear states with limited industrial capabilities. See more in 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 and

Sharon Squassoni compiled a list of potential range of possibilities made by analysts in, North Korea's Nuclear Test: Motivations, Implications, and U.S. Options, United States Congressional Research Service, (2006)



twist of events took place, amongst others, the US Marshall who led the troops in South Korea which threatened to use nuclear weapons and warned the North Koreans and those supporting them would end in similar fates as Hiroshima and Nagasaki. At that point in time, this was potentially one of the factors which shocked and ‘drove’ the North Koreans and their Communist Chinese support armies back to the 38th parallel line. This event is pivotal as it also marks the beginning of a period of the North Koreans’ distrust against the US. Kim Il-Sung, the North Korean leader saw the ‘mighty potential’ of nuclear power that also drove the Japanese off the Korean soils after nearly 50 years of reign. Motivated by the thought of gaining such power through igniting fear in owning nuclear weapons, the North wasted no time in the search of nuclear development. Zooming ahead to the more present future in 2002, President Bush labeled North Korea as part of the “axis of 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 and stated its reasons were that because the US was threatening its security by its hostile policy. North Korea alleged that if they were to give up their nuclear ambitions, they would open themselves up to vulnerabilities of being a potential target of a pre-emptive nuclear attack by the US which itself, is one of the biggest nuclear weapon holder in the world while the North Koreans would have nothing to defend themselves against with. The fact that the US itself is a major nuclear weapons holder, only points towards inconsistency in treatment as it receives no opposition in the realm of international law, and North Korea realizes this fact. The North Korean ministry announced that the nuclear weapons were made to confront a nuclear threat from the US10. This potentially led to the first test carried out by North Korea in 2006 despite international resistance –to demonstrate to the world its nuclear-capable state status and to build on perception that building such nuclear stockpile will strengthen its security posture in the world. The North Koreans announced that “the test will contribute to safeguarding their sovereignty and socialism and guaranteeing peace and safety on the Korean peninsula and the surrounding region” 11. Even though the event of North Korea intentionally detonating their nuclear arsenal is highly unlikely, as this would only work against themselves, the danger of such ownership should not be disregarded since there is always a possibility that it may fall into the wrong hands and be used as a tool to manipulate world politics, which would not serve to anyone’s interest.

1.4 Potential implications

The potential implications are far too great if the nuclear activity in North Korea is left to the status quo

ante. A nuclear armed North Korea is a destabilising situation which not only poses profound threat to the

US, its neighboring region, but also to the world at large. This is because, in addition to the threat of its own

weapons capabilities, North Korea is suspected to be a willing exporter of weapons and possibly nuclear

materials through providing technology, fissile materials and ballistic weapons to rogue states, such as

Syria12, or terrorist organizations or individuals13. Essentially, if business continues as usual, and if nothing is

10

‘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 Israeli intelligence. The images appeared to show the design of a reactor similar to the reactor at the North Korean Yongbyon plant, which produced plutonium for North Korea's nuclear weapons program. The video apparently also showed North Koreans working at the Al Kibar site. U.S. officials have said that Israel shared the video with them before the September 6th attack. See more in Robin Wright, ‘N. Koreans Taped At Syrian Reactor: Video Played a Role in Israeli Raid,’ Washington Post, Thursday, Apr. 24, 2008; David E. 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 Korea's Nuclear Test: Motivations, Implications, and U.S. Options, United States Congressional Research Service, (2006)


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done 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 analysts

and experts are the possibilities of North Korea fuelling a ‘nuclear arms race’ in Asia, in which the

uncertainties of nuclear instability may create a cascading effect on other powers in the region14. If North

Korea keeps conducting test and threatening its neighbours to use nuclear weapons against them; this

could result in an undesirable scenario where the rest in the region may seek to develop its own nuclear

weapons program in the face of a clear and present danger from North Korea. In these circumstances it is

foreseeable that Japan, South Korea, China and Taiwan may try to derive legality to do so by defending15

themselves from acts of aggression. Nonetheless, the potential implications are non-exhaustive, as it is

uncertain how events would take turn, and the potential risks from such implications should not be

undermined, as the consequences of inaction is far greater than anything but dire.

2. Legal Framework and Legal Analysis of the role of international law

2.1 The international law actors

This essay seeks to evaluate the role that the United Nations (UN) has played in attenuating the risks of

nuclear weapons possession and proliferation, in verifying treaties and in creating tools of inspection in the

name of achieving in international peace and security in the world. In this respect, the UN through the

Security Council is empowered under Article 2(4) of the UN Charter to carry out duties for the maintenance

of international peace and security. In order to promote the establishment and maintenance of

international peace and security with the least diversion for armaments of the world's human and

economic resources, the Security Council shall be responsible for formulating, with the assistance of the

Military Staff Committee referred to in Article 47, plans to be submitted to the Members of the United

Nations for the establishment of a system for the regulation of armaments. This is was how the birth of NPT

came about –with the UN as the custodian of non-proliferation. At this juncture, as it is recognised the

needs and circumstances of the 21st century are constantly evolving, it is also pertinent that the UN’s role

does not remain static, but is fully adaptable and useful as an instrument of the world’s peace and security

ultimate guardian.

2.2 The Nuclear Non-Proliferation Treaty (NPT)

“As globalization continues to present new challenges to the non-proliferation community, innovative approaches 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 if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” 16

Page 203, The United Nations and nuclear orders: Context, foundations, actors, tools and future prospects, United Nations University Press, 2009



Forty years ago, the NPT17, perhaps the hallmark for the UN in the movement towards a nuclear-free world

was set into place as one of the most important international security bargains of all time: states without

nuclear weapons pledged not to acquire them, while nuclear-armed states committed to eventually give

them 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 that

joined the NPT up till it withdrew itself in 2003. Analysts view that the desirability of North Korea remaining

in 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, through

the conclusion of the Agreed Framework under the Clinton administration19, prospects of North Korea

moving 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 so

differently 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 also

faded away with him, as President Bush clearly had another approach to the issue. Just as the mood under

the previous Presidency was strategically poised for making a progress with North Korea, matters took a

complete ‘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”, among

others, to this North Korea agreed by doing the following: to remain a party to the NPT and accept its

safeguards agreement; to allow ad hoc and routine inspections with respect to the facilities not subject to

the freeze; and to come into full compliance with the safeguards agreement with the IAEA including taking

all steps deemed necessary by the IAEA.

One cannot help but wonder what if the Agreed Framework had been carried on consistently? Trying to

presuppose what would have been the eventual outcome would not be of help now. However, one should

also not just see that case as a bygone, since many lessons can be extracted from that experience. For

instance, in future talks involving different countries, analysts can derive and try to duplicate the successful

elements of the Agreed Framework which would have optimistically led to a better compliance with the

NPT. One can also learn from this experience that diplomacy works best when both parties to the

negotiation try to be mutually sincere to each other. The author is convinced that as President Clinton has

reflected that successful diplomacy strategy has the power to make a difference, especially in international

law, where politics plays a large part in it. This claim is substantiated by the amnesty that was granted by

North Korea to two American journalists as a result of a successful negotiation secured by President Clinton

with the North Koreans in 2009.

17

The NPT was introduced by the International Atomic Energy Agency (IAEA) in 1968 18

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 States after painstaking negotiations under President Clinton and Kim Jong-Il. With the framework, the relationship of the concerned parties dramatically shifted from confrontation to a cooperative approach. With the Agreed Framework, both sides tried to solve the two critical issues—freezing North Korea’s suspected nuclear weapons development program and normalizing the U.S.-DPRK relationship—through a package deal.’ See more in 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)


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2.3 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 the

NPT. 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 the

supreme 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 the

state regarded as having jeopardized its supreme interests. These procedural conditions in fact, have given

rise to legal questions as to whether given that North Korea had withdrew without fulfilling this procedural

requirement, could the Council legally have had the power to block such a withdrawal? The response to

this would be analogous to a maze, except that this one wouldn’t have an exit. It is asserted that following

North Korea’s withdrawal, the parties to the NPT and the Security Council never seem to have accepted

North Korea’s legal position on its withdrawal21. However, despite this lack of legal recognition of North

Korea’s purported invocation of its right to withdraw, the Security Council had deplored North Korea’s

announcement of withdrawal from the NPT, and acting under its enforcement capacity under Chapter VII

of the UN Charter, sought to ‘demand’ North Korea to immediately retract its announcement of

withdrawal, return to the NPT and IAEA safeguards. This fact is in the author’s view slightly contradictory in

the sense that if in the first place the Security Council and the parties to the NPT did not accept North

Korea’s legal position to withdrawal but still maintained the status list of the NPT, why would they then go

on to ‘demand’ North Korea to ‘return’ to the NPT, if they were not recognized to have had even ‘left’ the

NPT in the first place? In addition to this, there are also other several loopholes identified in the NPT such

as the ‘marriage’ of ‘two incompatible goals’ such as ‘atoms for peace22’ and ‘non-proliferation’ on the

other, 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 credible

firewall between peaceful and non-peaceful uses of nuclear energy.

2.4 Analysis of the impact of Security Council’s resolutions

Over the years, UN sanctions23 have notably emerged as one of the most powerful tools that the

international community can resort to in its quest to maintain international peace and security24. As a

result of North Korea conducting its nuclear tests in 2006 and in 2009, the Security Council responded with

resolutions which not only demanded suspension of all related ballistic missile activity, but also imposed

extensive sanctions measures on North Korea such as trade-related measures, financial sanctions and

travel bans. Needless to say, even though this sanction appears to be extensive, the intended goal of the

Security Council is to maximize the impact by targeting coercive pressure on those suspected to be

20

Article X of the NPT provides that, ‘Each party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme national interests 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 the treaty, 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 to peace, breach of the peace, or act of aggression. 24

Masahiko Asada, ‘A solution in sanctions’, March 2011

http://www.fas.org/nuke/control/npt/text/npt2.htm



responsible for the wrongdoing25, whilst at the same time to minimize unintended impact on the innocent

populations. In this aspect, two out of the three resolutions on North Korea obliged UN member states to

freeze financial assets owned or controlled, directly or indirectly, by the persons or entities designated by

the Security Council’s sanctions Committee. In addition to that, travel bans were imposed on designated

persons, and ‘requested’ UN member states to inspect cargoes from North Korea. The adoption of such

resolutions, also known as ‘smart sanctions’, is praiseworthy and laudable for such a creatively-crafted

solution. 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 sanctions

regime has “teeth that will bite”. Such specificities that have been given much deliberation as truly laudable

in the context of evolving needs of the century.

Notwithstanding the foregoing, sanctions no matter how creative or clever they are, can be evaded easily

by the designated entities and individuals by changing names or creating bodies that can act for or on

behalf 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 only

about four cases which successfully involved the seizure of arms and related material from North Korean

cargoes. To illustrate the difficulty of enforcing such a sanction, one need not analyse all the cases, but look

only at the seizure that took place in Thailand, whereby about ten or more different entities and countries

appeared to have been involved in a single incident of illegal transfer alone. This demonstrates that in fully

securing the effectiveness of UN sanctions, only an orderly promulgation of coordinated international

willpower 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 member

states embrace and respect the spirit of international cooperation and collaboration. Thus, the adoption of

sanction resolution is not the end of the story, but rather, the beginning and this only suggests that without

effective 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 Conundrum

Another notable source of international law which may lend light to whether the use of nuclear weapons is

permissible in any circumstances under international law is the ICJ advisory opinion on this matter. Even

though the ICJ firstly acknowledged that the threat of nuclear weapons would generally be contrary to

applicable 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 an

extreme 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 have

inadvertently provide countries to ‘recourse of nuclear’ in an ‘extreme circumstance of self defence’.

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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 to

the DPRK, a measure intended to have impact on the NK elites.


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Hence, depending on how one reads this phrase, there is neither international law or customary

international law that contains “any comprehensive and universal prohibition of the threat or use of

nuclear weapons as such”.

Even though the ICJ acknowledges the threat that nuclear activity poses to security and peace, they are not

explicitly prohibited by the international law, since it is ultimately justifiable in an extreme circumstance of

self defence. The judgment of the ICJ presents a legal conundrum for the use of nuclear weapons, on the

one hand, the NPT seeks to achieve a nuclear-free world and on the other hand, another instrument of

international law implies that the use of nuclear weapons may be justifiable where the survival of a State

would 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 when

many breaches pile one on top of the other, to the point where the gap between promise and performance

becomes unbridgeable.” -Kofi Annan

A most frequently-asked question, given the existence and establishment of the international law above, is

whether this institutions have failed or succeeded27 in addressing the nuclear issue in North Korea. In

assessing this, it is pertinent to consider first what has already worked, to see if it is viable to build on that

success.

The NPT is stronger when member states are convinced that it is working and that nations can be counted

on 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-nuclear

bomb advocates an opening to make their case. Focusing only on failure is misleading, however, and runs

the risk of generating a spiraling crisis of confidence28. As one observer29 recently noted, “It has become

fashionable, yet again, to predict the collapse of the NPT….”. This general skeptical attitude30 is dangerous

as it creates a vicious cycle. In such a spiral potentially dangerous cycle, a government begins to pull back

26

The language employed here is ‘would be’ instead of ‘is’. The difference between the usage of the two phrases is that the latter suggests element of ‘imminence’ as a condition to use nuclear as a self-defence, where as ‘would be’ is as a matter of literal interpretation, wider scope, more ambiguous and therefore maybe stretched by nuclear misusers and as an implication go against the intended original meaning and purpose that the ICJ may have had in mind when giving out the judgment. 27

Jim Walsh of Harvard University asked three questions in his paper – First, has the Nuclear Non-proliferation Treaty (NPT) been a success or a failure? Second, what accounts for this success or failure? Third, what do the lessons from the first thirty-five years of the 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 the NPT has been ‘surprisingly successful’. Indeed, he opines that it is arguably the most successful arms control treaty in human history. See more in Jim Walsh, ‘Learning from Past Success: The NPT and the Future of Non-proliferation’, Paper prepared for the Weapons 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 Foundation 30

Jim Walsh notes in his article that for most observers and commentators, there is little debate regarding the success or failure of the NPT, where there is a long running, broad consensus that the NPT has failed, is on the verge of failure or will inevitably fail with a resulting cascade of proliferation.



from its commitments because of doubts about the treaty, which in turn is taken as evidence that the

treaty is weak and encourages other governments to follow suit. Jim Walsh prudently suggest that what is

really required is an objective assessment, rather than ignoring or hyping success. Statistically, one can see

that since the NPT, fewer countries have had nuclear ambitions, as fewer states seeking nuclear weapons

today than at any point since World War II. On the other hand, the lack of enforcement provisions of the

NPT 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 the

case, as North Korea as witnessed by the world, has been subjected to political penalties, economic and

military sanctions and even threatened with actual use of force. Hence, when North Korea launched its

second nuclear test in 2009, it was interpreted by the world at large as an act of defiance against

international law in general for not taking heed of the Security Council’s resolution issued pursuant to its

first nuclear test in 2006.

3. A tangled web of legal and political factors in international law

3.1 Lessons from past experiences

“Those who cannot remember the past are condemned to repeat it.”

-George Santayana

The historical tensions between North Korea and the US was first attempted to be resolved through

bilateral meetings between them in the 1990s which led to the adoption of the Agreed Framework31. By

virtue of this framework, concluded between President Clinton and Kim Jong-il, a new relationship

developed between the two countries. Article II of the Agreed Framework stipulated that “the two sides

will move toward full normalization of political and economic relations.” Another notable provision is

Article III which stipulated that both sides will work together for peace and security on a nuclear-free

Korean Peninsula. Article IV then goes on to read that ‘both sides will work together to strengthen the

international nuclear non-proliferation regime’. Following these Articles, North Korea agreed to remain a

party to the NPT and accepted its safeguards agreement, and to allow IAEA to carry out ad hoc and routine

inspections. Given the strenuous past and tense experiences between them, this Agreed Framework is

indeed an epoch-making event. Not only they tried to achieve normalization in relationship, but also

constructive and concrete goals were explicitly expressed pertaining to the nuclear dilemma. Then, the

unexpected happened, as the debris of 9/11 swept past the city of New York, the whole world was shocked

into 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 stance

towards North Korea change under President Bush’s regime. One can aptly describe that the cooperative

relationship 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 slightest

31

Eric Yong describes the ‘Agreed Framework’ as the offspring of the resolution of the North Korean nuclear dispute. The Agreed Framework on North Korea’s nuclear program required that North Korea cease activities that could have given it a nuclear arsenal of 50 weapons by the decade’s end; in exchange, the United States and other countries promised to provide North Korea with alternative energy source.


12

elements of North Korea’s military power’. This action immediately pushed back whatever relationship had

been established between the two countries to see déjà vu of the US’ hegemony at the height of the

Korean 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 the

current re-initiation of the six-party talks in reigniting the engine of the six-party talks. The latter, being that

there is much patching-up to do considering how talks have fallen apart before; and that relationship and

trust had been strained along the years. Consequently, we are now back to square one again. As for the

relationship between the US and North Korea, only time will tell as the world now watches in anticipation

how President Obama will take the lead on. Whatever it is, one should bear in mind that the Obama

Administration has much catching up to do, as he took over the baton from his predecessor with many

retracted steps. Stepping stones needs to be strategically planned out and carefully implemented to rebuild

the path towards an effective relationship.

However, given that the past Agreed Framework was rolled out under President Clinton, there may be a

chance that Hilary Clinton, who is the Secretary of State of the US, who also happens to be President

Clinton’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 order

The six-party talks originated as a result of North Korea withdrawing from the NPT in 2003. These talks

involving 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 the

discussions held between them were nonetheless futile since they have been thus far not reached any

consensus. Nevertheless, one should not completely disregard the experience from this accord, such as the

analysis 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 way

forward would be a unified and collective approach taken by all these 5 nations. As long as there are

divisions in opinion and cold treatment towards North Korea, and lack of willpower to compromise for a

strategic common aim and goal, this six-party talks is bound to head for another round of failure, just like

how we have seen in the previous talks. The key lesson from this is to be able to draw the will of the six

nations through putting them altogether at the hexagonal table. As symbolically shown, this countries all

display different responses.

Overall, US’s response towards this development of cooperation has been ad hoc and reactive, (rather than

being pro-active with pre-planned strategic objectives), and mostly crisis-driven, added with a lack of

common interests in the Northeast Asia. As described by O’Hanlon and Mochizuki, US policy toward North

Korea in the last decade has been, for the most part, narrow and tactical , focusing on the crisis du

jour 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 the Massachusetts Institute of Technology The Washington Quarterly, (Autumn 2003)



The participation of the Chinese is thought to be reluctant and defensive in general33. In this context, China

is the only country perceived to be most trusted by North Korea, having a common communist historical

background. Initially, China is known to have given a degree of latitude towards North Korea despite being

aware of North Korean’s illegal drugs, weapons and counterfeiting trade. Nevertheless, North Korea’s

nuclear ambitions is drawing China’s agitation. However, eventhough China is not in favour of such a

growth of nuclear ambition in its neighboring soil, its approach to this matter is not be too pressing on

North Korea. On the one hand, this is seen as a lack of action by the Chinese, on the other hand, some

analyst view this as China’s strategy of slowly building a confidence base with North Korea. As many

academics 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 to

retain some form of control and influence over this matter. Comparing Russia and China, North Koreans has

more 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 sanctions

and severing its ties with North Korea to a greater extent especially after the second nuclear test. Japan not

only restricts more of its outflow of Japanese personnel to North Korea, it also went to the extent of

amending 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 be

more of a ‘middle-power’, desiring only for reduced tension on the peninsula. This explains its pursuance of

modest goals, such as approaching this with functionalism and 'moderation', in that it tries to diffuse the

tension with its Northern counterpart through improving ties by way of expanding trade relations and

facilitating 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 with

the South, this ‘functionalist’ relationship has proven to be a convenient opportunity for North Korea to

deal with the South.

In a nutshell, one thing is for sure here: the most promising route to resolve the worsening nuclear crisis in

Northeast Asia is for Washington, Tokyo, Seoul, and Beijing is forward as a kick-start to solve this

denuclearization dilemma. In fact, this platform could be leveraged by all the parties involved to try to first

build confidence and base of trust. Deducing from the fragmented and different approaches taken by the

countries above, the author deems that the most plausible and realistic way forward is to follow the

diplomacy 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 would

best serve the interest of all parties. In this regard, the biggest priority would be to gain North Korea’s trust

enough 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 regional conflicts.


14

As proposed by Jishe Fen34, as simple as this may sound; sincerity is the most important ingredient in

building trustworthy relationship and mending the broken trust between the parties. Unfriendly rhetoric

during the process can only bring the negotiation process a step back instead of taking them forward. In

this simple act of sincerity, policymakers would be able to provide a road map for the vital and ultimate

goal of denuclearizing North Korea. Through the stages of implementation, each side would retain leverage

over the other as aid would be provided gradually to North Korea while they would cut or eliminate its

weapons 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 Korea

feels more confident and at ease to do so. In order to do this, the parties have to keep in their mind the

historical conflict North Korea had with the US giving rise to its legitimate security concerns. Without

establishing trust or confidence, the parties cannot effectively move an inch towards reaching any goals

collectively.

4. The potential solution

4.1 Current development, six-party talks is revived again

Despite the foregoing discussion, all hope is not lost for North Korea. Afterall, the platform for negotiation

is there; the only thing missing is just a piece of puzzle to fit in to ‘reactivate’ the negotiation in the right

direction. Certainly now, with the sudden change of leadership, the time is more opportune than ever for

to convince the new leader to kick-start his leadership with improved international relations ties for the

betterment 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 new

leader36, it is hoped that he will pick up the six-party talks on where it was left, and return to the hexagonal

table 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 unlikely

that we will see any improvement in achieving denuclearization in North Korea. As already pointed out

earlier, the impact of nuclear proliferation in North Korea is not in anyone’s interest, as the threat over

security and peace in the Northeast Asian region looms over dauntingly, especially in this period of

uncertainty for the political regime in North Korea. Besides that, the humanitarian problems in North Korea

resulting from a repressive regime and lack of basic necessities are another huge concern for the

international community, thus, leading to the world’s three largest international human rights

organizations, Amnesty International, Human Rights Watch and the International Federation for Human

Rights (FIDH), along with 40 other organizations from around the world, to launch a major global campaign

on September 2011 to seek the establishment of a UN Commission of Inquiry to investigate crimes against

34

Jishe Fen, ‘Seeking the best or the second best: Lessons learned from Six Party talks’, paper presented at the Third Trilateral Meeting on Nuclear Stability and Nonproliferation, King’s College London Centre for Science and Security Studies, October 2007 35

Ibid. 36

See more at http://globalpublicsquare.blogs.cnn.com/2011/12/27/kim-jong-un-survivability-scorecard-what-to-look-for/ (Last accessed on 27 December 2011)



humanity in North Korea. The longer the delay in attaining denuclearization in North Korea, we are

incidentally prolonging the sufferings of the North Koreans, as the resources deployed by the North Korea

on 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 desirable

and 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. The

consequences of igniting a ‘war’ in North Korea as a result of military intervention would see deaths of

millions of innocent civilians37, and would only be a replay of the 1950 Korean war where history repeats

itself but this time with even worse catastrophic consequences as the scale of the disaster would be bigger

and most likely affect its regional neighbours much to the regional neighbour’s worst fears. As noted by

O’Hanlon and Mochizuki, any military strike at North Korea’s nuclear reactors and plutonium reprocessing

facilities at its Yongbyon site north of Pyongyang would be extremely risky in light of the possibility that a

larger war would result38. The danger of intervening through military means could also possibly trigger

North Korea to activate its nuclear weapons if it views that it has nothing to lose by doing so. Such an event

is beyond any imaginable comprehension. Nevertheless, most academics and observers view that such an

event 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 issue

One of the viable and possibly most sustainable solution to achieving gradual denuclearization in North

Korea is through a grand bargain solution via a functional cooperation methodology. Functional

cooperation in this context refers to O’Hanlan and Mochizuki’s view that by not fixating on just the nuclear

program, ironically, a grand bargain is more likely ultimately to denuclearize North Korea and, most

importantly, 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 a

commitment by South Korea, China, Japan and the United States to help North Korea gradually restructure

and rejuvenate its economy40. China could provide technical help, in the light of its experiences over the

last 25 years in gradually injecting entrepreneurial activity and its own mode of capitalism into a

Communist economy.

37

When the Clinton administration considered military action on North Korea’s nuclear facilities in 1993, the estimated human

casualties from an invasion was about 52,000 armies and nearly half a million South Korea soldiers dead or wounded, with an

untold number of civilian deaths. Also, it would be difficult to launch attack on North Korea’s nuclear facilities, given their talent for

concealing activities underground. 38 O’Hanlon and Mochizuki, ‘Toward a Grand Bargain with North Korea’, The Center for Strategic and International Studies and the

Massachusetts 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.


16

4.4 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 is

noteworthy that no mention has been made as to who should play this role. In this regard, it is believed

that the role of a mediator is crucial one, the choice made as to who should fit in this role must be thought

very carefully. In my view, the EU would befit this role best, as it is one of the most powerful bloc of nations

in the world. In this essay, the proposed solution would be to introduce an influential bloc of nations which

has 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 to

the strict observance and the development of international law, including respect for the principles of the

UN Charter41. It is proposed that the EU would be the best bloc of nations to advocate a pro-active and play

a creative role in this dimension, by faithfully conveying messages to the parties of the six-party talks that

cannot see eye to eye, and to attempt bridging the gap among the confrontational issues. The EU is also a

good choice geographically, as it is located in between the US and the Northeast Asian region. This proposal

is 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 an

important role which, if all goes according to what is envisaged, would also strengthen the EU’s reputation

in the Asian region.

The EU, being one of the world’s biggest aid contributor to developing nations should try to encourage

North Korea to gradually give up its nuclear ambitions in exchange for economic aid to assist the country

out of poverty, to build a mutual base of trust with North Korea, and to help bridge the gap between North

Korea and the world. If the EU comes into the picture, having a great deal of experiences in ensuring that

interested applicants joining the EU must put in place the minimum requirement of human rights law, this

may well ‘kill two birds with one stone’.

Through building confidence measures, and followed by ability and capability to sit and negotiate sincerely

with each other on the rights and obligations expected of one another. Conceivably, the EU possibly will

help instigate a ‘functional mechanism’ by seeking a more normalized relations through economic and

social means. Economists view that the potential economic benefits is massive if North Korea’s economy is

open-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 is

also sometimes dubbed by few as the Belgium of Europe would not only help attain the much-needed

peace and security in the region, but this could also help to pull the North Koreans out of poverty and

famine. By not merely fixating on the denuclearization issue, and through display of genuine concern over

the North Korean citizens’ welfare, this could lead to a more fruitful prospective negotiation where neither

41

Article 3(5) of the Treaty of European Union, the Consolidated Treaty of Lisbon



parties perceive to be under any form of duress42. This ideal vision is operationally feasible, as the

economic situation in North Korea can start improving right away through a trans-railwork linking Russia to

the Northeast Asian region. Once North Korea obtains consistent supply of oil, more businesses would be

operable and feasible in North Korea. With more openness, and businesses, it would slowly spur the

economy, and soon its people will also move out of poverty and starvation. A more assertive role by the EU

may also put some pressure on the US to stop playing the ‘hegemonic’ role, but to participate by treating

itself equal as the rest of the world.

4.5 How the EU can play the role of a mediator

The EU, having its own ‘supranational nucleus’ due to its unique structure among others, is jointly

competent with its 27 member states to carry out coordinated external actions. Even more so now, after

the Lisbon Treaty that came into force in 2009, a new special portfolio has been specifically created to carry

on this new function to reflect the EU’s common stance, and to give it visibility and influence, via speaking

through 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 order

to promote an international system based on stronger multilateral cooperation and good global

governance44. The first High Representative of the Foreign Affairs and Security Policy45, Baroness Catherine

Ashton who has the power to call the shots in foreign affairs matters, is rightly in position to lead the

configuration in handling this North Korea matter. As the US counterpart is a special envoy appointed for

the North Korean mission, that would make the US counterpart of a ministerial level in the EU’s terms. In

this regard, where the level of negotiation between the parties take place, Baroness Ashton would be

rightly 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 should

be an alarm strong enough to warrant a diplomatic intervention by the EU at the six-party talks to play the

role of mediator between those inherently divided on the North Korean issue. It is only when differences

are reconciled and harmonized that a strong and unilateral action can be effectively rolled out on North

Korea, potentially speeding up the six-party talks which has been excruciatingly slow, to the detriment and

expense of the North Korean citizens. A stronger and more effective stance has to be taken on the

42

Michael O’Hanlon and Mike Mochizuki, ‘Toward a Grand Bargain with North Korea’, The Center for Strategic and International

Studies 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 be delved 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 with her EEAS. Under Article 15 of the Treaty of the European Union (TEU), the institutional role of the European Council has been further clarified to be the driving force. In the exact wording of Article 15 of the TEU, “The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.” 44

Article 21(2) of the Treaty of the European Union, the Lisbon Treaty 45

The position of the High Representative is a new creature of the Lisbon Treaty, which makes the position unique as it is a hybrid of the European Commission, European Council and the Council of Ministers. As this is a new post, the full-potential has not been fully-exploited yet, but given the right mix of political leadership and pursuance of objectives, the EU has a great potential in contributing towards breaking the stalemate between the six-parties with a fresh and neutral viewpoint.


18

enforcement of a potentially agreeable solution which would hopefully close this nuclear chapter in North

Korea.

It will also be advantageous for those in the North East Asian region to be able to be “contaminated” with

the EU’s unique notion of acting in the “community’s spirit” with the notion of “common interest” of the

EU 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 Symposium

The future of North Korea is beset with potential shocks that are uncertain whereby it really has no control over such typical issues as factional infighting, a military coup, refugee flows, possible civil war, nuclear

weapons at large and Beijing and Washington in disagreement or even conflict.46

Even 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 international peace and security which has the potential to shake the very survival of humanity, we have to look beyond that 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 fact that this type of politically sensitive matter would only work in painstakingly gradual stages. As we have tried to understand the motivations behind the nuclear ambitions in North Korea, it is clear that North Korea which has been given the cold shoulders and politically hostile treatment over the years by the US have destroyed the trust if any at all, that North Korea has for the US. Like it or not, whether it is conclusively definitely proven that North Korea holds destructive nuclear weapons is still a threat for the world, as it is definitely certain that the nuclear tests launched by North Korea is assessed by the IAEA experts to be equivalent to the impact of the impact of the Hiroshima and Nagasaki bombings. Despite that the safeguards regime under the IAEA, and the NPT47 have played pivotal roles in maintaining the peaceful use 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 to international law principles of peace and security is a viable proposal, before the six-party talks commences again. It is also reiterated that this domain of North Korea deserves serious world attention and awareness of what goes behind the curtains. It is high time to collaborate towards putting an end to the potential nuclear crisis together not only for the sake of security and peace in the Northeast Asian, but also to see this 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 2011 47

TREATY ON THE NON-PROLIFERATION OF NUCLEAR WEAPONS, July 1, 1968, (entered into force Mar. 5, 1970), available at http://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).



5.1 Epilogue: What next for North Korea?

For Washington, Beijing, Seoul, Tokyo or Moscow it will not be of beneficial to anyone’s interest to remain at loggerheads over this North Korean dilemma. Instead, they should now be on a common stand to aspire to maintain stability on the North Korean soil and the North East Asian region49. The time to strike a grand bargain with North Korea is now, as it would be a means for the ‘Supreme Successor’ to earn the loyalty of the military and the people of North Korea, chances are high for a change of the system to a certain extent with the international community in order to be able to feed his people50. Consequentially, in order for him to obtain such kind of aid and investment from the international community, it is likely that in exchange for

that, North Korea will be insisted on making concessions toward giving up its nuclear weapons. Finally, a really 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 sooner rather than later, as there is no doubt that time is the essence of what is next.

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Goohoon Kwon, ‘A United Korea? Reassessing North Korea risk’, Goldman Sachs, Global Economics Paper No.188, (September 2009) Jim Walsh, ‘Learning from Past Success: The NPT and the Future of Non-proliferation’, Paper prepared for the Weapons of Mass Destruction Commission Stockholm, Sweden, (October, 2005) Lisa Tabassi and Jacqueline Leahey, ‘The Treaty on the Non-Proliferation of Nuclear Weapons: Taking Stock after the May 2008 Preparatory Committee Meeting’, The American Society of International Law Insights, Volume 12, Issue 14, (June 2008) Daniel Joyner, ‘North Korean Links to Building of a Nuclear Reactor in Syria: Implications for International Law’, The American Society of International Law Insights, Volume 12, Issue 8, (April 2008) Christopher J. Le Mon, ‘Six-Party Talks Produce Action Plan on North Korean Nuclear Disarmament’, The American Society of International Law Insights, Volume 11, Issue 5, (March 2007)



Lisa Tabassi and Jacqueline Leahey, ‘The Treaty on the Non-Proliferation of Nuclear Weapons: Taking Stock after the May 2008 Preparatory Committee Meeting’, The American Society of International Law Insights, Volume 12, Issue 14, (June 2008) Report by Mr. Weston S. Konishi, Associate Director of Asia Pacific Studies, ‘Denuclearizing North Korea: Exploring Multilateral Approaches to Risk Reduction and Peace Regime Building’, a publication of the Institute for Foreign Policy Analysis, (September 2011)

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

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