South Korea as Oliver Twist
Posted: July 26, 2012 Filed under: Nuclear 5 CommentsI just saw this story about the ongoing negotiations between the U.S. and South Korea on a replacement 123 agreement. South Korea very much wants to be able to have domestic ENR capability and the U.S. is not willing to sign a deal with them unless they commit not to have it.
Theres just a tone to stories like this of the little developing state begging the big powerful developed supplier state to please, sir, allow them to have this technology that they really want, and think would be really beneficial for them. Like little Oliver asking for more gruel from the headmaster. The paternalism is just palpable, and really disturbing to me. The child presents its well-thought-through reasons why they should have the new stuff, and how they’ll be extra careful with it and make sure it doesnt hurt anyone. And then the dad just shoots them down, saying they dont really need it; its just too dangerous for them to have; they can’t be trusted to be responsible with it yet; theyre fine without it and should just keep relying on dad for the stuff.
I noted in my post below on the current gold standard interagency review about the debate going on in the comments to Mark Hibbs’ post over at Arms Control Wonk. David Fite in those comments tries to persuade us that when countries like Taiwan and South Korea agree to no-ENR commitments in their 123 agreements witht the U.S., its completely voluntary and an exercise of their sovereign right to choose that everyone should respect. And even more, that we should view such decisions as state actions producing a new global norm.
Well South Korea doesnt look very sovereign here to me.
Arms Control Law 
Dan,
Congratulations on the new blog. But you and much of the ROK press commentary seem to be ignoring a relevant piece of arms control law–The ROK-DPRK denuclearization agreement which bans enrichment and reprocessing on the Korean Peninusla. DPRK has clearly violated it but ROK continues to insist it is in force.
Hi Miles,
Welcome, and thanks for your comment. I assume you’re referring to the 1992 Joint Declaration of the DPRK and ROK on the Denuclearization of the Korean Peninsula available here: http://cns.miis.edu/inventory/pdfs/aptkoreanuc.pdf
First, as a matter of law its not clear to me that this document is a legally binding treaty. Its an interesting document, because on the one hand it looks like just a joint declaration of political commitment, like you find in the documents exchanged between states when becoming members of the NSG, for example. But then on the other hand it also talks about coming into force, and exchanging appropiate documents, and it was apparently signed by high ranking officials. So if I were doing a real legal analysis, I’d have to look into the issue further to be able to tell whether the parties intended for this to be a legally binding treaty, or just a politically binding declaration.
I think one pretty clear indication that South Korea doesnt consider itself legally bound by this document is its publicly expressed desire to have ENR activities on its soil. Whether that means the ROK doesnt think this was ever a treay, or alternatively that it thinks the agreement is now essentially moot because of the DPRK’s material breach, is not clear. But either way, why should the U.S. put itself in the position of trying to make sure the ROK abides by law that the ROK clearly thinks its not bound by? How is this the business of the USG at all anyway? Theres certainly no obligation for the U.S. in this document. Is the USG putting itself in the position of the enforcer of obligations between third states? That doesnt make any sense to me.
I think that this argument is just a pretextual basis trumped up by USG lawyers to try and make it look like U.S. policy on the matter actually has some justification. But in the end it gives no such justification.
To the best of my knowlegde, the 1992 Declaration is exactly what it says on the tin, i.e. a declaration, not a binding treaty. Korea is never listed as an existing nuclear weapon-free zone, not even in well-informed sites like OPANAL’s (www.opanal.org/ZonasLibresArmasNucleares.html). On the other hand, Dan is correct when he says that the Declaration employs treaty language. it might be worth verifying whether it was ratified by the two Koreas, or at least submitted to the competent organs for ratification.
Assuming that the Declaration was a treaty, one could argue that it has been terminated because of certain general grounds under the 1969 Vienna Convention on the Law of Treaties, i.e. a fundamental change of circumstances (North Korea going nuclear, or changed security scenarios), inadimplenti non est adimplendum (North Korea breached the Declaration, thus freeing South Korea from its denuclearisation obligations), or, more simply, because of North Korea’s express or implicit withdrawal.
[…] I wanted to call readers’ attention to an excellent new article by Mark Hibbs on the Carnegie website, on the topic of U.S. diplomacy in negotiating nuclear sharing (123) agreements, and particularly on the subject of the so called “gold standard” provision prohibiting ENR activities by partner states. I previously blogged about this issue here and here. […]
Oliver Twist ends on a positive note, though.