What is Seriously to be Done about North Korea’s Linear Progression Toward Nuclear Weapons Delivery Capability?!?!?!?!

Every few months we hear a new claim – and the inevitable follow-up discussions about the believability of that claim – regarding how far North Korea has come in developing a nuclear warhead that can be miniaturized and fitted onto one of their increasingly long-range missiles, and thus used to threaten its regional neighbors, or even the continental United States.  The particulars of just where they are right now are less concerning to me than what appears to be a fairly linear progression of advancement in their capabilities, which again appears to make it only a matter of time – and here it seems realistic to talk of months or at the most a handful of years – before they achieve the ability to strike the U.S. with a nuclear tipped missile.  And what’s really concerning is that TO THIS DAY I still haven’t heard anyone with a particularly good plan to stop this from happening.

There’s lots of talk of more sanctions, and of returning to negotiations.  A good bit of talk about offering greater incentives.  Of course all of these things have been tried before with North Korea and don’t seem to have made much of a difference in the trajectory of their progress toward a missile-deliverable nuclear weapon.

Then there’s the idea that at some point China will get tired of tolerating and protecting the increasingly defiant NK leadership and will do . . . something . . . about it.  I wish that would happen, but there seems to be an awful lot of guessing and assumptions that go into that reliance, which don’t pat down the concern very much.

I come back to this subject at intervals here at ACL. Some previous posts are here, here, here, and here.  I try to stay up to date on at least some of the leading writing on what to do about the North Korean threat. And it just baffles me that there isn’t a concrete plan for stopping the emergence of this capability by North Korea.

In my previous posts I’ve tried to head off any comparison between the North Korean case and the Iran case, on which I’m well known to have taken a different tack entirely. I don’t want to go back through the distinctions again here. If you’re serious, you know what they are.

And again, as I’ve also said before, I’ll put my general non-interventionist bona fides up against anyone’s and expect to come out favorably in the comparison.  I am absolutely not some hawk that looks automatically to military force to solve WMD proliferation problems. Quite the opposite.

But sometimes there literally is no other practical option, and the threat is real and credible. And in those circumstances I’ve always been willing to afford states facing the imminent threat of use of nuclear weapons against them, the right to strike in an anticipatory fashion to defeat the threat. This is in my view within the right of self defense accorded to states under international law. Debates about what imminence means in this context are rich, sophisticated and nuanced. But at some point, I think states do have a right to preemptively use military force to degrade threats of use of nuclear weapons against them.

Like so much in international use of force law, practical legality will essentially depend on whether states generally are satisfied that a use of force was reasonable, necessary and proportionate to an intolerable threat, and that all reasonable peaceful means to avoid using military force had been exhausted.  For example, Israeli threats to use military force against Iran’s nuclear facilities never met these tests of satisfaction.  But I think that at some point, a preemptive military strike by the U.S. Against North Korea would.

Is the U.S. at that point yet with North Korea? I don’t think so. But when will we be? I’d give it months or at the most a handful of years.

I don’t know anyone in the right agencies of the U.S. government to check (not that they’d tell me even if I did) but I’m sure that plans for just such a military contingency are well maintained, they just aren’t spoken about publicly.

I suspect this is, in the end, the concrete plan for stopping North Korea’s nuclear threat to it’s neighbors and to the U.S.  It’s just not part of what U.S. officials are ready to talk about yet. I sincerely hope it doesn’t come to this, and that something will change to make it unnecessary.

But if not, I’d rather see this than live with a North Korea capable of launching a nuclear first strike against the United States.

UPDATE: Here’s a link to an article I wrote in 2008 on use of force law in the context of WMD proliferation.  I’ve referenced it a couple of times in the comments to this post, and I wanted to make it available to those interested:

Jus ad Bellum GWILR PDF

Time to Outlaw Nuclear Weapons

I just read this piece over at The National Interest by Tom Sauer, entitled “It’s Time to Outlaw Nuclear Weapons.” It’s probably the best presentation of a coherent and practical scheme for moving forward with the program of nuclear disarmament that I’ve seen.

Sauer argues for the conclusion of a treaty outlawing the possession of nuclear weapons, by those states willing to sign onto such a statement. He estimates that between 120-150 states might be willing to sign onto such a treaty, and accepts that none of the nuclear weapons possessing states would sign onto it.

Sauer is a little bit low on detail about what the Nuclear-Weapons Ban Treaty would actually say, but since he seems to be alluding to the parallel process on the CBW side, I suspect what he means is that the NWBT would simply be a declaration by all states parties that both the use and possession of nuclear weapons are unlawful, and that the parties obligate themselves never to possess or to use them.

This would be the first procedural step, and would create a broadly supported international norm that could then be referenced by civil society activists within nuclear weapons states to try to persuade their governments to embark seriously on efforts to disarm.

The next step would then be to actually get the nuclear weapons states on board to signing a separate treaty, a Nuclear Weapons Convention (NWC) that would do the much more detailed  and difficult work of setting an actual schedule and targets for disarmament, much like the Chemical Weapons Convention did.

I like this general presentation of the process going forward because I do think Sauer and others in the humanitarian initiative are right that a NWBT, as described here, could indeed likely be agreed now, and would in fact attract a majority of states to sign on to it.  I suspect the nuclear weapons would put a lot of pressure on their allies and client states not to sign it, so I don’t know what the final tally would be. But I think it would be a significant majority of states. And I do think that such a treaty that simply recites the understanding of a majority of states that the possession and use of nuclear weapons is illegal, would be useful not only for the norm internalization purposes that Sauer mentions, but also as an important evidence of both state practice and opinio juris supporting the establishment of a rule of customary international law.

Readers will recall that Marco and I had a good exchange a while ago on the subject of customary international law related to NPT Article VI. See here, here, here, and here. The effectiveness of a NWBT in contributing to the establishment of parallel customary law would involve some of the same issues that we discussed in those exchanges, e.g. Marco’s concern about specially affected states.  But in the end, in my opinion, if a supermajority of states manifested state practice and opinio juris supporting this ban, on a subject that I truly think can be argued persuasively to specially affect all states as potentially no other, a rule of customary international law should and would be recognized to come into existence. This rule would then create obligations for all states, including the nuclear weapons possessing states.

Regarding the subsequent NWC, I have to say I’m not very optimistic at all that such a treaty will ever be concluded, at least not in a form comparable to the CWC. I think that nuclear weapon states’ national interests will always prevent them from agreeing to completely disarm. But that doesn’t mean that the preliminary step of concluding a NWBT is without usefulness. Quite the contrary, for all the reasons discussed. And the setting of such an international legal norm, in both treaty and customary law forms, could over time put pressure on nuclear weapons states to at least reduce their stockpiles of nuclear weapons to low numbers, which would make the world a safer place.