The Korean Joint Declaration an Impediment to South Korean ENR?

I just read this GSN article from yesterday by Elaine Grossman entitled “Two-Decade-Old Pledge Complicates South Korean Nuclear Aspiration.”  Here are a few excerpts from it, containing several different views regarding the legal character and current status of the “pledge” in question, which is the Joint Declaration of South and North Korea on the Denuclearization of the Korean Peninsula, signed on January 20, 1992:

South Korea’s designs on producing atomic fuel recently scotched a 2014 trade deal with the United States, but could yet have new ramifications: Potentially shattering a twenty-one-year-old pledge Seoul made to never process sensitive nuclear materials, according to issue experts.

“By dint of the Joint Declaration of 1992, South Korea has said it will not possess enrichment or reprocessing facilities on its peninsula,” Thomas Moore, deputy director of the Proliferation Prevention Program at the Center for Strategic and International Studies, said at a recent panel discussion.

South Korea issued the declaration along with North Korea, which has since set up plutonium reprocessing and uranium enrichment facilities in breach of the bilateral statement. Since 2006, Pyongyang also has gone on to test-detonate nuclear devices on three separate occasions, most recently in February.

[. . . . . .]

Moore turned heads earlier this month, though, in saying that South Korea is already a gold-standard nation much like the United Arab Emirates.

In addition to issuing the 1992 declaration, stating that “South and North Korea shall not possess nuclear reprocessing and uranium enrichment facilities,” Seoul “has an Additional Protocol with the IAEA and a full-scope safeguards agreement,” the former Republican Senate staff aide said at the May 17 CSIS event. “By any measure, South Korea is already a gold-standard state.”

And

 One regional expert said South Korea has the capacity to back off of the 1992 declaration if it so chooses. The statement with North Korea “doesn’t have the force of international law,” said Victor Cha, who directs Asian studies at GeorgetownUniversity’s School of Foreign Service. “It’s a political agreement between the two Koreas. It was supported but never formally sanctioned by the United States” and Russia, he said.

 Cha noted in a Wednesday interview that South Korea arguably violated the declaration already by allowing its scientists to experiment with plutonium reprocessing and uranium enrichment in past decades. Moreover, he said, South Korean officials might contend that the joint statement “is now defunct because the North has already violated it.”

 And

Nonproliferation expert Miles Pomper said last fall that even though North Korea flouted the 1992 ban, “South Korea and the other members of the six-party talks with Pyongyang still consider [it] in legal force.”

“We shouldn’t answer North Korean noncompliance by allowing South Korea to become noncompliant,” Moore told Global Security Newswire. 

This is a subject that Mark Hibbs also wrote about last year in a Carnegie piece here, in which he noted:

South Korea may become one of the exceptions made to a no-ENR outcome, as Seoul is hardly inclined to abandon its interest to enrich and reprocess. To the contrary, South Korea argues that Washington should afford it the same freedom to reprocess its growing inventory of spent fuel to minimize nuclear waste as the United States provided Japan when its 123 agreement was renegotiated in the 1980s.

The United States has long argued that a 1991 bilateral agreement between South Korea and North Korea, which commits both to renounce ENR, stands in the way. But South Korean officials argue that the bilateral agreement is null and void in the wake of North Korea’s revelation that it is now enriching uranium outside of IAEA safeguards, not to mention that it also produced plutonium outside of safeguards and used it in two nuclear explosions in 2006 and 2009. Officials argue that the size of South Korea’s ever-expanding nuclear program—the country now has 23 power reactors—will soon justify the establishment of a domestic uranium enrichment capacity.

So there appears to be some considerable disagreement in the nonpro community over the legal character of the 1992 Joint Declaration, and its current legal status.

I looked up the best copy of the Joint Declaration I could find, which is here (there’s also one here with only slight differences – if anyone has a better copy, I’d be happy to see it), and some of the relevant subsequent state practice concerning the declaration, which is chronicled here.

In looking at the text of the Joint Declaration, it’s not clear to me from the text itself whether the parties, South Korea and the DPRK, intended this agreement to constitute a treaty, i.e. to be legally binding, or alternatively to constitute a non-legally-binding joint political commitment. There is no one simple test of form for qualifying an agreement between states as a treaty. The essential test is whether the parties intended the agreement to be legally binding, and gave their proper consent to it with that understanding.  

The text is entitled a “declaration,” as indeed are all the joint statements made in the document. In fact, the words “agree” or “agreement” do not appear once in the document. This choice of words does strike me as a form one would use if one did not want the text to be seen as a legally binding agreement, but rather as a legally non-binding  political commitment to act jointly.  If I recall correctly, the NSG guidelines are similarly customarily adopted by NSG participant states through joint declarations – though I think these are unsigned joint declarations, whereas the Joint Declaration under consideration here was signed by high level officials of both states.  But if the text was to be contractual in nature – i.e. a mutual undertaking of obligations through agreement – then why style it a declaration as opposed to an agreement, as in most treaty texts? 

Again, I’m not saying that this terminology is dispositive of the question of whether the text is a treaty. Form is not dispositive on this question, but rather the intent of the parties and their manifest consent. I’m just saying that the text itself isn’t clearly indicative that the parties meant it to be legally binding.

Looking at the subsequent state practice with regard to the Joint Declaration as well, nothing clearly demonstrates to me that the parties considered this to be a legally binding document. As far as I can tell, the mutual inspection regime called for in the text was never successfully implemented. The South-North Joint Nuclear Control Commission that was created to implement the Declaration appears never to have produced any real agreement between the parties on implementation. 

It was then in March of 1993, only a year later, that North Korea withdrew from the NPT itself.  And then in 2002 that the DPRK admitted it had a secret uranium enrichment program. And then of course in 2006 that the DPRK conducted the first of its, to date, three nuclear weapon tests.

I wouldn’t say that I’ve been able to conduct an exhaustive analysis of all of the relevant factors, but it appears to me from a review of the text and the subsequent state practice related to the Joint Declaration, that the parties did not clearly intend for it to be a legally binding treaty, but rather likely intended it to be a legally non-binding political commitment to act jointly in the specified ways.

But let’s just say arguendo for a moment that it was indeed a legally binding treaty.  Article 60 of the Vienna Convention on the Law of Treaties provides:

1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.

 [. . . . . . ]

 3. A material breach of a treaty, for the purposes of this article, consists in:

(a) a repudiation of the treaty not sanctioned by the present Convention; or

(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.

It is incontrovertible that the DPRK, through its three nuclear weapon tests, and revelations of extensive nuclear weapons development programs, has violated provisions essential to the accomplishment of the object and purpose of the Joint Declaration. Therefore, South Korea is fully entitled, if it wishes, to invoke this breach as a ground for terminating the treaty, relieving it of any legal obligation it has pursuant to it.

So let’s go back to the original GSN article, and the disagreement among observers as to the legal character and current legal status of the Joint Declaration.  My assessment is as follows. It is most likely that the Joint Declaration was not a legally binding treaty, but rather a legally nonbinding declaration of joint political commitment.  However, even if it was a treaty, South Korea can now formally terminate it at any moment, due to the DPRK’s incontrovertible material breach of the treaty.

Thus, I have to disagree with Thomas Moore.  The 1992 Joint Declaration is no impediment to South Korea possessing enrichment or reprocessing facilities on its territory.