The North Korean Nuclear Test

Readers will remember that I wrote this piece on North Korea before their most recent nuclear explosive test. I’m hearing some talk that they might be prepping for yet another one soon.

Here are a couple of the best pieces I’ve seen written about the new test recently. One is by Graham Allison in the NYT; the other is by Jeffrey Lewis at FP.

I’m not a technical guy, but the fact that NK now seems to have both a plutonium and a uranium track working for producing nuclear weapons; their apparent success in increasing test yield while at the same time making progress in miniaturization; along with the ever increasing range of their missiles – all this is pretty freaking dangerous stuff. 

As I said before, the North Koreans concern me a whole lot more that Iran, India, Pakistan, or Israel. And it’s because of what I perceive to be their just plain nuttiness. Irrationality driven by intense paranoid delusion; the completely autocratic nature of the government and its control over information to the North Korean people; and the government’s over-the-top aggressive rhetoric towards its neighbors and towards the U.S. 

If the North Koreans didn’t have such an obviously developing nuclear weapons program, all of the above wouldn’t bother me so much. On the other hand, if they were developing a nuclear weapons program and weren’t so nutty that wouldn’t bother me so much either. But the combination of the two, and the thought that some day not too far away we may have to deal with a North Korea that really does have the capacity to shoot a nuclear armed ICBM at Japan, and then soon after at the continental U.S. – this seriously concerns me.

As I said in my previous piece, I know well all of the problems associated with any attempt to seriously do something about the North Korean threat. But we have got to come up with something better than just watching this happen.

As this is a blog devoted to arms control law, I suppose I should mention the international law applicable to North Korea right now. In terms of their possession and proliferation of nuclear weapons, the only law currently binding on them is the raft of U.N. Security Council resolutions commanding them to stop their nuclear weapons program and re-join the NPT. Then of course there’s Resolution 1540 on export controls and proliferation generally.

Unfortunately, in this case, one also has to consider the rules of international law on the use of nuclear weapons. This of course was the subject of the 1996 ICJ Advisory Opinion. Not that I expect the North Korean leadership cares, but that opinion, along with what I consider to be settled customary international law at this point, establishes clearly that any use by North Korea of nuclear weapons against any other country, under any reasonably foreseeable circumstances, would be illegal under international law.

The ICJ of course waffled on the question of whether a state could lawfully use nuclear weapons “in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.” Of course, extreme circumstances of self-defense would only go, if anywhere, to the jus ad bellum question of whether a use of force against another state would be lawful. It does not go to the jus in bello question of whether the use of nuclear weapons during an armed conflict would be lawful under international humanitarian law, and its restrictive principles of distinction and proportionality particularly.  As Yoram Dinstein has written about this part of the ICJ’s holding “[This] sentence is the most troublesome. The linkage between the use of nuclear weapons and ‘extreme circumstances’ . . . is hard to digest: it appears to be utterly inconsistent with the basic tenet that [the law of armed conflict] applies equally to all belligerent States, irrespective of the merits of their cause . . .” (The Conduct of Hostilities, pg. 78)

Thus, any international use of nuclear weapons by North Korea, even if it was under full-out attack by the U.S. and South Korea and Japan, would be extremely difficult to justify under international humanitarian law. I’m sure that the imaginative out there might be able to come up with some hypothetical scenarios under which legality might be arguable – perhaps a tactical or low yield use targeting an isolated military object in South Korea, or in the Sea of Japan or East China Sea against a naval target. But fully complying with the distinction and proportionality principles relative to targeting in the modern law of armed conflict, as well as with international environmental law rules operative in armed conflict, would be extremely difficult – approaching impossibility.

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8 Comments on “The North Korean Nuclear Test”

  1. k_w says:

    Dan,

    Maybe this is a silly question but: Is there any proof North Korea has performed nuclear weapons tests? I mean, they must have started with miniature nuclear devices and are now getting more and more powerful …

  2. Actually the NK tests have been relatively “lame”. Their first test was barely a kiloton – if it wasn’t a “dud” – the second was estimated to be “several kilotons” and this test is estimated to be around 7 kilotons. By comparison the Hiroshima “Little Boy” gravity bomb was 13–18 kilotons and the Nagasaki “Fat Man” gravity bomb was 20–22 kilotons. So the NK bombs are far from being terribly significant and their improvement has taken them several years of work between each test.

    As for delivery systems, even if their missiles are getting longer range, they are still hell and away from developing a warhead delivery system that can hit anything further than Japan, let alone the US.

    And when they achieve that, what have they got? Perhaps two to six nuclear weapons that if used against ANYONE would result in their instant annihilation by the US. International law would be irrelevant.

    No regime is that irrational – not even North Korea. If North Korea starts a war, it will be a conventional war, not a nuclear war.

    What concerns me far more, as I mentioned earlier, is the recent report in Asia Times that listed all the things that South Korea and Obama are doing to ratchet up military tensions with NK. For instance, the decision to move the 20-odd-thousand US troops on the DMZ to south of Seoul has been REVERSED. This directly puts those troops in danger of being annihilated within the first 72 hours of a war. In addition, the current South Korean President is apparently hell bent on “re-unification” on the South’s terms, while the NK government is still unstable due to the change of power.

    The possibility of a “hot war” – a conventional war without nukes – with North Korea is higher now than it has been in years. This is a far worse threat than NK nukes ever being used against the US. That latter threat is just not credible compared to a conventional war.

    And the only way forward to preventing that is – just like in the case of Iran – to do the exact opposite of what Obama and South Korea are doing.

  3. Don Bacon says:

    DPRK, responding to sanctions, is the gift that keeps on giving to the US, facilitating the tens of thousands of US troops garrisoned in ROK, one air hour from Beijing and Shanghai. This is why the US has never promoted the end of the Korean War, never kept its promises to DPRK, conducts war games in violation of the Armistice Agreement, provokes DPRK, and never encouraged the reunification of Korea.

    President Bush (-43) scuttled President Clinton’s progress on DPRK ( the “Agreed Framework”) in 2001. Bush, in effect, abrogated Clinton’s achievement by including North Korea in the “Axis of Evil.” Pyongyang also concluded that the threat of “pre-emptive nuclear attack,” outlined in the U.S. 2002 National Security Strategy of September 2002, was aimed at North Korea.

    The US with its UN and ROK puppets continually conducts provocative war exercises proximate to DPRK, in violation of Armistice terms.

    Feb 21, 2013 — U.S., South Korea To Stage Major Joint Exercises

    SEOUL — The United States and South Korea announced plans Thursday for major annual joint military exercises as regional tensions run high following North Korea’s third nuclear test. A joint air, ground and naval field training exercise known as Foal Eagle will be held from March 1 to April 30. Separately, U.S. and South Korean troops will stage a computer-simulated drill named Key Resolve from March 11-21.

  4. masoud says:

    Dan,

    A couple of questions:

    1. How can the UNSC order North Korea to rejoin the NPT, or ratify any other treaty it doesn’t want to ratify?

    2. States either have a sovereign right to produce nucluear arms or they don’t. In the latter case, the entire edifice of the NPT is redundant, and all NWS, whether formally declared or not, are in violation of international law. In the former case, how can a UNSC resolution remove this right? Specifically, can you elaborate on the meaning of article 40 of the UN charter:

    Article 40

    In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

    How can a UNSC demand that NK adhere to an indefinite suspension of nuclear arms possibly be construed as a ‘provisional’ measure, that doesn’t prejudice NK’s sovereign right to build nuclear arms(if nation states do indeed have such rights)?

    3. You claim that nearly any use of nuclear arms by NK is a violation of International Humanitarian Law. Is the legality of use or the threat of use of nuclear arms by convential nuclear weapons states any different. Is the use or the threat of use of nuclear arms in a second(retaliatory) strike scenario any different than in a first use scenario?

  5. masoud:

    “2. States either have a sovereign right to produce nucluear arms or they don’t.”

    They do until they sign the treaty. Then they don’t. The question is under what conditions can they leave the treaty. IIRC the only allowed provision is the case of “threat to the nations security.”

    See here:

    NORTH KOREA’S WITHDRAWAL FROM THE NUCLEAR NONPROLIFERATION TREATY
    http://www.asil.org/insigh96.cfm

    • masoud says:

      Richard,

      According to the reference you’ve provided, it’s the state party’s judgement of what it’s ‘supereme interests’, are that is relevant to whether it can withdraw from the treaty. And the potentially problematic issue regarding NK’s withdrawal is the (lack of) notice period given, and even that doesn’t amount to much of a problem.

      • Agreed.

        Which makes the whole thing “political” not legal, because the West – including the UNSC – treats the whole thing as a case of “do what mommy tells you – because I said so.” 🙂

  6. Don Bacon says:

    If one accepts that U.N. Security Council resolutions are law, then Iran is in violation of the law. Like Iran, I can’t accept that, since in my opinion the resolutions have no legal basis, but a political one. Iran has ME hegemony and US/Israel want it. The only basis the US can advance is that Iran has wrong intentions! Since when do intentions, real or imagined, have any legal standing?

    Further: There’s no cause to doubt that the UNSC under the US puppet Ban Ki-moon, like the IAEA, is a mere extension of the US State Department. Look at its resolutions, look at the US vetoes. That fact should remove any pretense of legality.


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