International law and the DPRK’s nuclear policy

Sharon Hofisi and Jonathan Muzuva
With the DPRK’S enthusiasm showing no signs of dampening, her nuclear policy calls for a united effort by the international community to convince Pyongyang to stop its policies. The DPRK withdrew from the Nuclear Non-Proliferation Treaty in 2003 citing US aggression. The treaty barred North Korea from making nuclear weapons. Pyongyang cited US aggression as the motivating factor for its withdrawal. Theoretically, if arguments can be mounted using the rationale choice theory, the state actors in the DPRK perhaps are bargaining for more time.

Since Pyongyang started testing missiles capable of striking the United States’ mainland, Washington has also changed its stance on the DPRK. North Korea continues to test thermonuclear devices, reported to be several times more powerful than the weapons that were used during the Nagasaki and Hiroshima bombings. Of late the world has been surprised by the pace at which North Korea has been testing and advancing its nuclear arsenal.

In this wake, the actions by the DPRK cease to be mere sovereign concerns. The international community must start to be worried about the nuclear policy. Students of strategic studies or conflict management must start to analyse the motive of political leaders in the DPRK.

Washington is contemplating a response that involves unprecedented “fire and fury”. Further, nations that trade with the DPRK also face the risk that Washington will impose sanctions against them. The move can be interpreted as a way to make China influence the DPRK not to conduct further missile testing. China is the largest trading partner of the DPRK and one of the main sympathisers of the regime in Pyongyang.

In this way, Washington is using indirect means to encourage the DPRK’s partners to also show the DPRK that sanctions may affect trade relations. The effect of sanctions has been criticised by others as useless. This is because North Korea is already under sanctions.

For those who follow international politics, Russian President Vladimir Putin argues that “additional sanctions against the DPRK are useless”. He also warned that military pressure against the DPRK would lead to a global planetary catastrophe.

In essence, he is rejecting the United States’ calls for sanctions against the DPRK. His view assists analysts to locate the efficacy of sanctions under the arguments that consider international law as public morality.

The DPRK has intensified her nuclear programmes possibly because she is using them as a deterrence measure against international threats. The pertinent question that can be asked relates to whether North Korea is using the nuclear policy as a rational response to the threats from military powerhouses such as the USA.

What is also important from the Washington’s contemplated responses can be explained using views from senior figures in the Trump administration such as Secretary of State Rex Tillerson.

He seems to be playing up the path of diplomacy. His approach is based on the need to bring the Pyongyang government to the negotiation table. The approach plays well into the plans of Pyongyang. The USA is using diplomacy to lure the DPRK to abandon her policy.

When we consider the mooted diplomatic approach to resolving the impasse between the USA and the DPRK, other nations can also play a part in ensuring that the two nations negotiate in good faith. Put simply, the trade partners or critics of the sanctions on the DPRK can also weigh the benefits of negotiation and open confrontation.

North Korea would benefit economically if her trade partners could commit to getting involved in the negotiations between the two countries. The Korean Peninsula will also immensely benefit from regional peace and stability.

The international community will benefit from the negotiations in many ways. The major benefit is linked to international law. International law has often been criticised as unreal law. The criticism has been steeped in the argument that international law is weak law when it comes to enforcement.

The DPRK has been labelled an outlier or a state which does not fulfil its international law obligations. Negotiations will possibly seek to achieve a win-win result that takes into consideration the fears of the DPRK.

Nations compete for survival on the international community. They use several means at their disposal to fight for survival. They can use war or threats of war as a way to deter other nations from threatening their sovereignty.

The DPRK’s nuclear policy is understood in this article in light of power politics. Predictably, the pace that she is pursuing her nuclear policy calls for international cooperation in ending her nuclear enthusiasm.

Sanctions may not dampen the DPRK’s enthusiasm. State sovereignty plays a significant part in this response. Sanctions are considered an effective and peaceful means to enforce international law. Under Article 41 of the United Nations Charter, the United Nations Security Council may call on member states to apply measures not involving the use of armed force to give effects to its decisions.

Ideally, the USA is justified in showing its intention to impose sanctions on the DPRK or its trade partners. The involvement of the UNSC can give impetus to this contemplated stance.

James Paul argues that sanctions cut off trade and investments, preventing a target country from buying or selling goods in the global marketplace. They can aim at particular items like arms or oil.

As such, the UNSC can follow the spirit of Article 41 and ensure that the USA also upholds the same spirit. The USA, as part of the permanent members of the UNSC, can also benefit from discussions with other members of the UNSC.

Russia has already registered its views on possible US sanctions. China, France, Great Britain and other non-permanent members can also be involved. In this way, the UNSC’s mandate in maintaining international peace and security can be pursued procedurally.

Nations may have treaties which restrict nuclear testing such as the 1963 treaty banning nuclear weapon tests in the atmosphere, in outer space and under water; or the Comprehensive Test Ban Treaty (CTBT) can be used in the negotiations.

Although North Korea is not a party to the two treaties, and has no direct legal obligations thereunder as argued by critics like Christopher Le Mon, who further notes that even if the CTBT was considered customary international law, that treaty permits the testing of nuclear weapons underground, so long as radioactive debris is not released outside the territorial limits of the testing state. If North Korea was still a party to the NPT, its testing of nuclear weapons would constitute a clear violation of Article 2 of the treaty.

The importance of the CTBT is that it establishes peremptory norms which the DPRK is obliged to observe under international law. This brings us into the argument about the primacy of international law.

States got their sovereignty from international law. The international community came together to establish the Treaty of Westphalia in 1645. States therefore got their sovereignty from international law.

The DPRK cannot use its domestic law to the exclusion of customary international law. She remains part of the family of nations and must observe customary international law.

The UNSC must also resort to peremptory norms of international law before resorting to, or allowing states to resort to sanctions.

Sharon Hofisi is a lecturer in International Law while Jonathan Muzuva is a Master of International Law student at the University of Zimbabwe. They write in their personal capacity.

Pin It