Did North Korea’s Nuclear Test Violate International Law?

Article 1(b) of the Partial Test Ban Treaty permitted underground nuclear testing so long as radioactive debris was not released outside the territorial limits of the testing state (including, presumably, outer space and international waters). Though it is not a party to this treaty, this slightly-conditioned legality of underground nuclear tests by parties to the PTBT, may explain the assertion in the North Korean announcement of its nuclear test that no radioactive leakage had occurred from the testing site.

Even if the PTBT were to be considered customary international law (Article 38 of the Vienna Convention on the Law of Treaties notes the possibility of treaty obligations imposing obligations on third states as rules of customary international law), it doesn’t appear that North Korea’s test today would violate its prohibitions. Given that the CTBT is such a recent document, and unfortunately has yet to even enter into force, it’s quite clear that its provisions cannot be considered to have developed into customary international law. Moreover, given that states specifically concerned with nuclear weapons testing have failed to ratify the treaty, they must lack the opinio juris that they are prohibited from such testing, thus eliminating the argument that the CTBT codified existing customary international law.

The Nuclear Non-Proliferation Treaty

In January 2003, North Korea announced that it was withdrawing immediately from the Nuclear Non-Proliferation Treaty (NPT), and notified the Security Council of its withdrawal. To conclude whether North Korea could be in violation of its treaty obligations under the NPT, then, an earlier determination must be made as to whether it is currently a party to the treaty.
(Articles 34-35 of the Vienna Convention on the Law of Treaties — which in large part indicates the customary international law of treaties — conclude that treaties do not create obligations for states not party to that treaty unless the treaty specifically indicates that such obligations are created and the state in question accepts those obligations.)

Prior to its announced withdrawal in 2003, North Korea certainly was a party to the treaty. Article X(1) of the NPT provides a procedure for a party to withdraw from the treaty:

Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.

It’s important to distinguish between the requirements for withdrawal from the NPT, and the requirements for the notice of such withdrawal. The NPT imposes only one requirement for the former, and two for the latter.

Thus by the terms of the NPT itself, the only prerequisite for withdrawal from the NPT is that a party to the treaty must “decide[ ] that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country.” The absence of any stated mechanism for review of this decision, and the fact that the right to withdraw from the treaty on the basis of this decision is couched in terms of each party’s “exercis[e] of its national sovereignty,” indicate that there is no treaty means by which another state or states may review a party’s determination that its “supreme interests” have been “jeopardized” by “extraordinary events, related to the subject matter of” the NPT.

The North Korean announcement of withdrawal claimed that it was effective immediately, a statement that violates on its face the three-month notice provision. However, as Frederic Kirgis has previously concluded,

Noncompliance with the notice requirement does not necessarily mean that the withdrawal from the NPT is invalid. The requirement is couched in terms of a promise to give three months’ notice, rather than as a condition that would have to be met in order to make the withdrawal effective.

The only defect in North Korea’s withdrawal announcement, then, appears to be its statement that the announcement claimed to constitute an “automatic and immediate effectuation of its withdrawal from the NPT.” Because Article X(1) requires that three months’ notice be given of a withdrawal from the NPT, the question is whether North Korea’s statement that its withdrawal was effective immediately would render the withdrawal ineffective.

Rather than deem ineffective the entire North Korean withdrawal announcement, a reading of the treaty and the announcement that hews more closely to the purpose of this NPT provision and the intention of North Korea concludes that the North Korean withdrawal was legally effective after the three month notice period had passed. During this interim period, North Korea would still be bound by the terms of the NPT, and would be responsible for any violations thereof, as the principle of pacta sunt servanda (codified in Article 26 of the Vienna Convention on the Law of Treaties) obligates even a state party on the way out the door to perform its treaty obligations in good faith. (Of course, North Korea’s withdrawal from the NPT would affect in no way North Korea’s state responsibility for violations that occurred when it was a party to the NPT.)

The State Department may agree on this reading of the announcement and the NPT. In a statement to the 2005 NPT Review Conference, the State Department representative reviewed Article X(1) of the NPT and concluded that it “requir[ed] three months’ notice before withdrawal is complete.” By this formulation, North Korea’s withdrawal, though its text stated that it was effective immediately, was “complete” after the three month notice period had passed.

However, despite this general conclusion regarding Article X(1), the State Department still lists North Korea as a party to the NPT. The Security Council, in a Presidential Statement issued on 6 October 2006 (see below) and in preambular paragraph 10 of Security Council Resolution 1695 (which condemned North Korea’s recent missile tests), also indicates its apparent nonrecognition of the effectiveness of the North Korean withdrawal announcement, as both documents refer to North Korea’s “obligations” under the NPT and its “announcement of withdrawal” from the NPT (rather than an actual, effective withdrawal).

Such a policy of ambiguous nonrecognition of the North Korean withdrawal announcement is more political than legal in basis; moreover, it’s not consistent. The UN Department for Disarmament Affairs does not list North Korea as a party to the NPT; moreover, Resolution 1695, in its paragraph 6, indicates that the Security Council “strongly urges the DPRK to … return at an early date to the Treaty on Non-Proliferation of Nuclear Weapons.” This somewhat undercuts an argument that North Korea remains a party to the NPT. (It’s another question whether the Security Council could authoritatively interpret the NPT and determine as a matter of law that North Korea remained a party. If you’re interested, Marko Divac Oberg has written an excellent article in the European Journal of International Law on the legal effects of Security Council resolutions, analyzing the treatment of such by the International Court of Justice.)

If North Korea were still considered a party to the NPT, its testing of nuclear weapons would constitute a clear violation of Article II of the treaty, which states that “Each non-nuclear-weapon State Party to the Treaty undertakes … not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices.” (North Korea ratified the NPT as a non-nuclear-weapon State Party.)

North Korea’s Nuclear Disarmament Declaration

As part of the fourth round of Six-Party Talks concerning North Korea’s nuclear weapons program, a joint statement from all six countries (China, Japan, North Korea, Russia, South Korea, and the United States) was released on 19 September 2005, stating in relevant part that “The DPRK committed to abandoning all nuclear weapons and existing nuclear programs.” A question thus arises whether having “committed” to this course of action, North Korea was legally obligated to follow it to completion, and whether this legal obligation included another such obligation not to test nuclear weapons.

The International Court of Justice has addressed the issue of legal obligations stemming from unilateral declarations, in the (coincidentally) Nuclear Tests case (summary). Therein, the ICJ concluded that international law did envision the imposition upon a state of international legal obligations based solely on a unilateral declaration made by that state.

The key to the Court’s conclusion was the intention of the state making the declaration; as it concluded in paragraph 46 of the judgment,

When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers upon the declaration the character of a legal undertaking, the State being thenceforth legally required to follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with the intent to be bound .. is binding.

By the Court’s reasoning, then, the two prerequisites for a unilateral declaration to impose binding international obligation are that the declaration (1) be given publicly, and (2) be made with the intention of being bound thereby.

The Joint Statement by all six parties to the talks should be considered a declaration by North Korea, to the extent it makes representations on behalf of the DPRK. (If North Korea did not want a statement concerning its intentions vis-a-vis its nuclear weapons program to be included, it could have forced its exclusion or refrained from signing onto the statement.) Analyzing this North Korean “commitment” to abandon its nuclear weapons programs according to the formula set forth by the ICJ, it’s not clear that the declaration imposed a legal obligation not to test a nuclear weapon.

First, the North Korean declaration was made publicly — sort of. That is, the statement was made in private negotiations with the other parties to the Six-Party Talks, and then released as part of the Joint Statement. This is more ambiguous than the public announcements by the president of France in the Nuclear Tests case.

As for the second requirement, the ICJ judgment in the Nuclear Tests case addressed the determination of intention only briefly. In general, it stated in paragraph 47 that

the intention to be bound is to be ascertained by interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for.

In finding that the French declaration at issue in the case (which stated that France would halt nuclear testing in the South Pacific) was indeed made with the intention that France would be bound thereby, the ICJ looked to the fact that the statements made by France did not contain any conditions. Earlier statements had announced that France soon would cease testing nuclear weapons “in the normal course of events”; the absence of any such qualification from later statements (including statements made by the French president to the prime minister of New Zealand, the state that brought the ICJ case against France) led the ICJ to conclude that such statements constituted unilateral declarations from which a legal obligation could be derived.

The context of the North Korean statement bears examination, in order to determine its intention in making the disarmament commitment. The commitment was made in the course of negotiations, in which the DPRK was expected to give up its nuclear weapons programs in exchange for recognition, an end to international isolation, and other benefits to be provided by the other five parties to talks. Given the quid pro quo nature of the North Korean “commitment” to disarm, it’s difficult to argue that this commitment constituted a legal obligation without regard to any action taken by another state. As an apagogical hypothetical, what if the other five parties chose to abandon the next round of talks, and withdraw their promised enticements? North Korea, having made its “commitment” in expectation of benefits to be provided by these countries, can hardly be thought to have had the intention to unilaterally oblige itself to abandon its nuclear weapons programs when such benefits are withdrawn.

Julian has previously posted on the “usefullness” of nonbinding political agreements (such as this Joint Statement). However, North Korea’s decision to go ahead with this nuclear test, despite its “agreement” to abandon its nuclear weapons program, perhaps indicates that the nonbinding and ambiguous nature of the Six-Party “agreement” should not be a model for future arms control campaigns.

Going Forward: The Role of the Security Council

So if the North Korean nuclear test does not violate any positive international law, is the international legal order a worthless burden on international affairs? Hardly. In fact, the core institution of the international legal order &mdash the United Nations &mdash offers the best means for an effective multilateral response to the dangerous and provocative North Korean nuclear tests.

And the UN Security Council is actively involved. The North Korean test came on the heels of a Presidential Statement issued by the Security Council that warned North Korea that:

The Security Council reaffirms that the proliferation of weapons of mass destruction and their means of delivery constitute a threat to international peace and security. The Security Council deplores the DPRK’s announcement of withdrawal from the Treaty on Non-Proliferation of Nuclear Weapons (the Treaty) and its stated pursuit of nuclear weapons in spite of its Treaty and International Atomic Energy Agency safeguards obligations. The Security Council deems that should the DPRK carry out its threat of a nuclear weapon test, it would jeopardize peace, stability and security in the region and beyond.
….
The Security Council will be monitoring this situation closely. The Security Council stresses that a nuclear test, if carried out by the DPRK, would represent a clear threat to international peace and security and that should the DPRK ignore calls of the international community, the Security Council will act consistent with its responsibility under the Charter of the United Nations.

A 2005 article by George Bunn and John Rhinelander confuses the question of conditions to NPT withdrawal (discussed above) with the power of the Security Council, under the UN Charter, to take action where it determines that a situation (including the withdrawal of a state from the NPT) constitutes a threat to international peace and security (discussed below). Bunn and Rhinelander entitled their article “The Right to Withdraw from the NPT: Article X is Not Unconditional,” and make the following conclusion:

Based upon the NPT’s negotiating history, the addition of the UN Security Council as a recipient of withdrawal notification demonstrates the negotiators’ intentions that the Council consider and be empowered to restrain withdrawal or take other action as deemed necessary.

However, the power of the Security Council to “restrain withdrawal [from the NPT] or take other action as deemed necessary” should not rest on so slender a reed as inferences drawn from the intention of the drafters of the NPT, and thankfully, it does not.

In the last paragraph of its 6 October 2006 Presidential Statement, the Council used the “magic words” of Chapter VII of the UN Charter: “threat to international peace and security.” Article 39 of the Charter gives the Security Council the power to determine whether a given situation constitutes a threat to international peace and security. (I’ve argued here and here that in making such determinations, the Security Council is bound only by jus cogens norms and its obligation to act according to the purposes and principles of the United Nations, found in Articles 1-2 of the Charter.) Once the Security Council determines that a situation constitutes a threat to international peace and security (which determination appears to have been already made vis-a-vis a nuclear test by North Korea), it is empowered under the Charter to order mandatory measures, under Articles 41-42, that must be complied with by all Member States of the United Nations, under Article 25 of the UN Charter.

Given the clear conclusion in the 6 October 2006 Security Council Presidential Statement, expect the Council to at the very least impose some form of economic sanctions on North Korea. (The NYT reports that the Security Council will meet this morning to evaluate responses to the situation, and notes that the United States and Japan are already at work drafting a Chapter VII Security Council resolution.) North Korea has previously announced that the imposition of sanctions would be considered an “act of war” against the North, thus making this latest development far from the last chapter in what has been and will be a dangerous confrontation involving the deadliest weapons on earth.