North Korea's second nuclear test: A moment of reflection to arrest the spiral of crisis

North Korea was once a signatory to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which North Korea ratified in December 1985, but since then, North Korea gave notice of withdrawal on January 10, 2003 under the provisions of Article X of the NPT. As far as North Korea is concerned, it simply exercised its own treaty right under Article X (1). That Article X is still in the NPT even after the NPT came in force on May 11, 1995.
Article X(1) provides: 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 jeopardised 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 jeopardised its supreme interests.
Article X allows each party to make its own decision as to whether extraordinary events, related to the subject matter of the NPT, have jeopardised its supreme interests. In North Korea's mind, its "supreme interests" were jeopardised. There is no mechanism within the NPT framework to determine whether any such decision on the supreme interests of the country was made in good faith or not. Accordingly, North Korea is no longer a party to the NPT, effective April 10, 2003.
But North Korea is not alone in this respect. Israel, which is widely known to have developed its own nuclear weapons, has not even signed the NPT. Neither has India nor Pakistan, both of which had already successfully exploded their respective nuclear explosive devices in 1998.
Notwithstanding the nuclear weapons capabilities they have developed, none of these countries is considered or recognised as "nuclear-weapon states" as defined by the NPT. Under the NPT, "a nuclear-weapon state is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967."
There are only five States, ie, the United States, Russia, the United Kingdom, France, and China, which are recognised as such. All of the officially recognised "nuclear weapon states" seek to maintain the status quo of the status of nuclear weapons capabilities as of 1967.
As discussed previously in this column ("The rule of First Capability and the NPT (I) and (II)," December 17 and 31, 2008), the NPT simply reflects the Rule of First Capability: The so-called "late comers" are more often than not caught by an emerging new rule which restricts, if not prohibits, such late comers from undertaking certain activities or conduct that had earlier been permissible.
The ultimate criterion of permissibility would accordingly be reduced to a matter of mere first capability, ie, those who became capable of doing certain things first are allowed to enjoy the fruits of their accomplishment. Those who later acquire the same capability would be barred from exercising that capability. It is the case of "Johnny-come-lately."
I subscribe to a basic policy of preventing the proliferation of nuclear weapons which is necessary to maintain minimum world public order. The need for it is more acute and urgent as a number of private, non-state extreme groups have spawned around the world and are eyeing at acquiring nuclear explosives.
To make the NPT more effective, the question is whether the nuclear weapon states are discharging that part of their obligations for nuclear disarmament stipulated in Article VI, which is primarily addressed to the nuclear weapon states: "Each of the parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control."
If the nuclear weapon states do not perform their obligations, the NPT would be considered one-sided, lacking the mutuality of obligations. In this respect, President Barack Obama's recent statement in Prague that "the United States will take concrete steps towards a world without nuclear weapons" is refreshing and will certainly encourage the development of new thinking, let alone the performance of part of that bargain the nuclear-weapon States have committed themselves under the NPT.
Article III of the NPT requires each non-nuclear-weapon State to accept safeguards in an agreement with the IAEA, in order to verify its compliance with its obligation under Article II to refrain from manufacturing or acquiring nuclear explosives.
In 1992, North Korea entered into its Safeguards Agreement with the IAEA under Article III of the NPT. The Safeguards Agreement allows the IAEA to inspect North Korean nuclear material and facilities "for the exclusive purpose of verification of the fulfilment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices."
Article 26 of the Safeguards Agreement, however, provides, "This Agreement shall remain in force as long as the Democratic People's Republic of Korea is party to the Treaty [the NPT]."
Consequently, since North Korea has withdrawn from the NPT in accordance with its provisions, North Korea's original Safeguards Agreement with the IAEA is no longer in force. Theoretically, similar safeguards requirements included under the 1994 Agreed Framework between North Korea and the United States are available, but regrettably, the Agreed Framework is no longer working.
India concluded with the IAEA an Agreement for the Application of Safeguards to Civilian Nuclear Facilities of February 2, 2009, the purpose of which is "to guard against withdrawal of safeguards under nuclear material from civilian use at any time." Likewise, Pakistan has placed at least a research reactor and two nuclear power plants under the IAEA safeguards. Unlike India and Pakistan, Israel does not have any civil nuclear power programme.
North Korea said that the nuclear test on May 25 was conducted "as part of the measures to bolster up its nuclear deterrent for self-defence." It is appropriate to recall the Advisory Opinion of the International Court of Justice on "Legality of the Threat or Use of Nuclear Weapons" of July 8, 1996, which left the question hanging by stating:
"[I]n view of the current state of international law, and of the elements of fact as its disposal the court cannot conclude definitely whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a state would be at stake." The ramifications of this sentence of the Advisory Opinion are woven into North Korea's statement. This one sentence will continue haunting us.
The Security Council has primary responsibility for the maintenance of international peace and security, and in carrying out its duties under this responsibility, the Security Council acts on behalf of the Members of the United Nations. At the time of North Korea 's first nuclear test, the Security Council by resolution 1718 determined that there is a clear threat to international peace and security and demanded that North Korea not conduct any further nuclear test or launch of a ballistic missile.
The Security Council accordingly decided, among other things, that North Korea shall abandon all nuclear weapons and existing nuclear programmes and all other existing weapons of mass destruction and ballistic missile programme in a complete, verifiable and irreversible manner.
North Korea's second test of a nuclear explosive device and the launch of missiles are clearly a violation of Security Council resolution 1718, and this took place less than a month of North Korea being censored by the Security Council of its missile launch on April 5, 2009.
North Korea's repeated violations of Security Council resolutions have hardened the international community. Acting under Chapter VII of the UN Charter, the Security Council could impose mandatory economic, diplomatic or even military sanctions on North Korea.
The Security Council is now deliberating more stringent and harder sanctions measures against North Korea on the one hand, and North Korea, on the other, is also engaging in further provocative acts. Without doubt, the tensions between North Korea and the rest of the world have considerably increased since then.
As North Korea refuses to return to the Six-Party Talks, the spiral of tension simply continues to go up. The international community's response to the present crisis is not only to de-nuclearize North Korea, but also to bring North Korea out of its hermit existence isolated as a pariah from the rest of the world community, so that North Korea could develop appropriate patterns of conduct in conformity with internationally accepted norms of behaviour.
One way to begin this process of engagement with North Korea is, I believe, to broaden the scope of agenda from only nuclear weapons, the NPT and safeguards issues to a broader task of ameliorating international relations of North Korea with the rest of the members of the Six-Party Talks, as in the case of fashioning the 1994 Agreed Framework.