Can the SC Resolution 2270 Stop North Korea's Nuclear Dilemma? From the Geneva Agreed Framework to the Washington Communiqué
| Author | Eric Yong Joong Lee |
| Pages | 262-277 |
262 Eric Y. J. Lee
Can the SC Resolution 2270 Stop North Korea
’
s
Nuclear Dilemma? From the Geneva Agreed
Framework to the Washington Communiqué
Eric Yong Joong Lee
*
The UN Security Council adopted Resolution 2270 against North Korea’s fourth nuclear
test on January 6, 2016, and its subsequent rocket launch. This resolution contains
tougher sanction measures than any others adopted in the past, but is not expected to
effectively stop North Korea’s nuclear weapons program. This essay analyzes the critical
loophole of the rule of law in global society regarding nuclear proliferation systems as well
as regional governance. It further suggests legal and policy options to resolve this nuclear
dilemma. The parties concerned are asked to alter the status quo of hostile co-existence and
instead revert to the spirit of the Geneva Agreed Framework.
Keywords
North Korea, Nuclear Test, Resolution 2270, NPT, Six-Party Talks, Two-Track
Approach, NEA-NWFZ, Kim Jong Un
1. Genesis
On January 6, 2016, North Korea carried out its fourth nuclear test at the Punggye-
ri nuclear test site, approximately 50 kilometers northwest of Kilju City, North
Hamkyeong Province. (Figure 1) It was the second nuclear detonation under the
leadership of Kim Jong Un. Unlike the past three tests, North Korea claimed it was
∗ Professor of International Law at Dongguk University – Seoul, Korea; President of YIJUN Institute of International
Law. B.A. (U. Washington), M.P.A. (Seoul N. U.), LL.M. (Leiden), Dr.iur. (Erasmus). ORCID: http://orcid.org/0000-
0001-5640-490X. This work was supported by the research program of Dongguk University. The views reflected in
this article are his own. Readers’ comments are cordially welcome. The author may be contacted at: grotian@hotmail.
com / Address: 562 Gwangnaruro, Kwangjin-gu #201, Seoul 05033 Korea.
DOI: http://dx.doi.org/10.14330/jeail.2016.9.1.11
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a ‘hydrogen bomb.’
1
This is, however, speculated to in fact be a kind of boosted
‘fission’
to the consequent 5.1 magnitude earthquake
2
with its epicenter at the nuclear test
site, being notably similar to the earthquake size that was accompanied by the 2013
nuclear test by North Korea.
3
Figure 1: The Punggye-ri Nuclear Test Site
4
Source: Compiled by the author
North Korea’s nuclear test was instantly responded to with severe criticism by the
international community. The US, Japan, and South Korea referred to it as a serious
violation of international law, and the UN Security Council adopted a resolution
towards complete nuclear non-proliferation.
5
China and Russia also condemned the
1 See North Korea says it tested hydrogen bomb, nk news, Jan. 6, 2016, available at http://www.nknews.org/2016/01/
north-korea-says-it-tested-hydrogen-bomb (last visited on May 3, 2016).
2 J. McCurry & M. Safi, North Korea claims successful hydrogen bomb test in “self-defense against US,” guarDian, Jan.
6, 2016, available at http://www.theguardian.com/world/2016/jan/06/north-korean-nuclear-test-suspected-as-artificial-
earthquake-detected (China said the earthquake was 4.9 magnitude). See also China Earthquake Data Center
only in Chinese>, available at http://data.earthquake.cn/datashare/datashare_details_subao.jsp?id=CC20160106094443
(all last visited on May 3, 2016).
3 USGS, M5.1 Nuclear Explosion – 24km ENE of Sungjibaegam, North Korea, available at http://earthquake.usgs.gov/
earthquakes/eventpage/usc000f5t0 (last visited on May 3, 2016).
4 See North Korea's nuclear programme: How advanced is it?, BBC news, Feb. 10, 2016, available at http://www.bbc.
com/news/world-asia-pacific-11813699 (last visited on May 12, 2016).
5 See North Korea nuclear: State claims first hydrogen bomb test, BBC News, Jan. 6, 2016, available at http://www.bbc.
com/news/world-asia-35240012 (last visited on Apr. 12, 2016)
264 Eric Y. J. Lee
North Korea’s actions.
6
To make matters worse, however, North Korea launched
a long-range rocket on February 7, 2016, named Kwangmyongsong-4 (광명성) at the
Tongchang-ri satellite launch site near its northwestern border with China.
7
Despite
prior notification to the International Maritime Organization of the launch of an
earth observation satellite, the international community severely reprimanded
North Korea of its rocket launch, which is believed to be part of its developing
an intercontinental ballistic missile capable of delivering a nuclear bomb.
8
It was
another violation of a series of Security Council resolutions prohibiting North Korea
from developing ballistic-missile technologies.
9
2. Resolution 2270
North Korea’s nuclear test and succeeding rocket launch brought a strong response
from the UN. On March 2, 2016, the Security Council unanimously passed Resolution
2270, imposing strong sanctions against North Korea.
10
The resolution was approved
by the members of the Council after nearly two months’ painstaking negotiations
after the January 6 nuclear test, a time period longer than the average number of
days for previous resolutions.
The Security Council condemned North Korea’s nuclear test as well as the rocket
launch that used ballistic missile technology as being “in violation and flagrant
disregard of the relevant resolutions, thereby constituting a challenge to the Treaty
on Non-Proliferation of Nuclear Weapons (“NPT”) and to peace and stability in the
region and beyond.”
11
6 See N Korean nuclear test condemned as intolerable provocation, channel newsasia, Jan. 6, 2016, available at http://
www.channelnewsasia.com/news/asiapacific/n-korean-nuclear-test/2404166.html; O. Gertcyk, Russia condemns
North Korea's 'nuclear bomb test', a 'threat to national security,' siberian times, Jan. 6, 2016, available at http://
siberiantimes.com/other/others/news/n0545-russia-condemns-north-koreas-nuclear-bomb-test-a-threat-to-national-
security (all last visited on Apr. 12, 2016).
7 See North Korea fires long-range rocket despite warnings, BBC news, Feb. 7, 2016, available at http://www.bbc.com/
news/world-asia-35515207 (last visited on May 3, 2016).
8 Sang-hun Choe, North Korea Launches Rocket Seen as Cover for a Missile Test, N.Y. times, Feb. 6, 2016, available at
http://www.nytimes.com/2016/02/07/world/asia/north-korea-moves-up-rocket-launching-plan.html (last visited on May
3, 2016).
9 Id.
10 Min-sik Yoon, U.N. passes toughest sanctions against North Korea, korea heralD, Mar. 2, 2016, available at http://
www.koreaherald.com/view.php?ud=20160302000075 (last visited on May 3, 2016).
11 UN, Security Council Imposes Fresh Sanctions on Democratic People’s Republic of Korea, Unanimously Adopting
Resolution 2270 (2016), SC 7638th Mtg. Coverage, UN Doc. SC/12267, available at http://www.un.org/press/en/2016/
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Resolution 2270 imposes an embargo against North Korea by means of earth, air,
prohibits exporting minerals such as coal and iron ore, which constitute its main
source of income.
12
However, the export of coal is exempt if the income derived from
it is used for the survival of the North Korean population.
13
North Korean banks within 90 days.
14
The sanction also extends to the prohibition
of opening new branches and representative offices of North Korean banks.
15
Resolution 2270 extends tougher measures than any previous ones, including
Resolutions 1718 (2006), 1874 (2009), 2087 (2013), and 2094 (2013).
Table 1: North Korea’s Nuclear Tests and the UN Security Council Resolutions
16
Nuclear Tests Resolutions Sanctions
1Oct. 9,
2006
1718 The Council imposed the ban of luxury goods and
ordered the inspections of cargos for banned items
listed in the following resolution from or to North
Korea and requires to all State Members “to prevent
the sale or transfer of materials related to Pyongyang’s
unconventional weapons programs, as well as large-
sized military items such as tanks, missiles and
helicopters”
Oct. 14, 2006
2May 25,
2009
1874 The Council authorized the Member States to inspect
on the land, sea, and air cargo of North Korean and
to destroy any goods suspected of being related to
its nuclear program. As for the financial measures,
the Security Council demanded, inter alia, that the
Member States not provide assistance, loans, or public
’s nuclear program.
June 12, 2009
sc12267.doc.htm (last visited on May 3, 2016).
12 S.C. Res. 2270, U.N. Doc. S/RES/2270 (Mar. 2, 2016) at ¶ 29, available at http://www.un.org/en/ga/search/view_doc.
asp?symbol=S/RES/2270(2016) (last visited on May 3, 2016)
13 Id. ¶ 48.
14 Id. ¶ 33.
15 Id. ¶ 34.
16 See The UN Security Council Resolution website, available at http://www.un.org/en/sc/documents/resolutions (last
visited on May 3, 2016).
266 Eric Y. J. Lee
3Feb. 12,
2013
2094 The Council obliged the Member States to freeze
financial transactions and bulk cash transfers involved
in North Korea’s illicit activities. Furthermore, the
interdiction and inspection of all suspicious ships and
cargos also became mandatory for the Member States
Mar. 7, 2013
4Jan. 6,
2016
2270 The Council imposed on North Korea an earth, air, and
sea embargo on exports of resources and finances to
prevent the flow of money, including the prohibition
to export minerals such as coal and iron ore, which
constitute its main source of income. Within 90 days,
UN’s Member States must close and cease financial
activities with all North Korean banks.
Mar. 2,
2016
Source: Compiled by the author
3. Impasse
North Korea’s nuclear weapons development program is not a recent project. It
traces back to 1993, when North Korea refused the IAEA’s special inspection of the
two sites that were suspected to be storing nuclear waste from plutonium production
under the Safeguard Agreement and declared withdrawal from the NPT.
17
The UN
Security Council then adopted Resolution 825 against North Korea in response to
its threats to the global nuclear security system. The hostility between North Korea
the US promised to provide Light Water Reactors (“LWRs”) to North Korea by
2003 and further open negotiations for the establishment of a peaceful diplomatic
relationship.
18
Responding to these promises, North Korea unloaded 8000 spent
fuel rods by June 1995 and, in October 1998, announced that it would not export
19
As
North Korea opened its suspicious underground facilities at Kumchang-ri to the
17 Eric Yong Joong Lee, The Complete Denuclearization of the Korean Peninsula: Some Considerations under International
Law, 9 chinese J. int’l l. 803 (2010).
18 IAEA, Agreed Framework of 21 October 1994 between The United States of America and the Democratic People’s
Republic of Korea, INFCIRC/457, Nov.2 (1994), available at https://web.archive.org/web/20031217175315/http://
www.iaea.org/Publications/Documents/Infcircs/Others/infcirc457.pdf (last visited on Apr. 12, 2016).
19 Supra note 17, at 804.
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US inspection team, the US promised to lift economic sanctions and provide food
support to North Korea.
20
highway to a nuclear-free Korean Peninsula. Such a cooperative mood, however,
drastically changed with the hostile policies of the US towards North Korea during
the Bush administration. When President Bush suddenly designated North Korea
part of an “axis of evil” with Iran and Iraq,
21
North Korea regarded it as an actual
declaration of war and acknowledged its nuclear weapons development program in
October 2002.
22
In April 2003, the US and North Korea resumed contact to ease the standoff at
the trilateral talks held in Beijing on April 23, 2003. Both sides reached an accord that
this crisis should be handled in a more peaceful and systematic manner among the
of the Six-Party Talks. The six nations, including China, the US, Russia, Japan, and
the two Koreas, got together in Beijing on August 27, 2003, discussed the means to
resolve the pressing issue of North Korea’s nuclear weapons program.
23
The fourth
round of the Six Party Talks finally delivered a Joint Statement on September 19,
2005 by which North Korea committed to abandoning all nuclear weapons and
existing nuclear programs and returning back to the NPT and to IAEA safeguards.
24
The September 19 Joint Statement was an iconic turning point toward a peaceful
settlement of the North Korean nuclear dispute. However, it was not implemented
because North Korea strongly protested against the US freezing its secret fund in the
Banco Delta Asia Bank of Macao.
25
20 Id. For details on the US-North Korea Berlin high-ranking meeting in September 1999, see Chronology of US-North
Korean Nuclear and Missile Diplomacy, available at https://www.armscontrol.org/factsheets/dprkchron (last visited on
Apr. 18, 2016).
21 State of the Union Address on 29 January 2002, available at http://georgewbush-whitehouse.archives.gov/news/
releases/2002/01/20020129-11.html (last visited on May 3, 2016).
22 Eric Yong Joong Lee, The Six-Party Talks and the North Korean Nuclear Dispute Resolution under the IAEA
Safeguards Regime, 5 asian-paciFic l. & pol’y J. 114 (2004).
23 Council on Foreign Relations, The Six Party Talks on North Korea’s Nuclear Problem, available at http://www.cfr.org/
proliferation/six-party-talks-north-koreas-nuclear-program/p13593 (last visited on May 3, 2016).
24 US Dept. of State Diplomacy in Action, Six-Party Talks, Beijing, China: Joint Statement of the Fourth Round of the
Six-Party Talks Beijing 19 September 2005, available at http://www.state.gov/p/eap/regional/c15455.htm (last visited
on May 3, 2016).
25 US Dept. of the Treasury, Treasury Designates Banco Delta Asia as Primary Money Laundering Concern under USA
PATRIOT Act, Sept. 15, 2005, available at https://www.treasury.gov/press-center/press-releases/Pages/js2720.aspx.
For details, see D. Lague & D. Greenlees, Squeeze on Banco Delta Asia hit North Korea where it hurt - Asia - Pacific
- International Herald Tribune, N.Y. times, Jan. 18, 2007, available at http://www.nytimes.com/2007/01/18/world/
asia/18iht-north.4255039.html (all last visited on May 3, 2016)
268 Eric Y. J. Lee
26
this was followed by Security Council Resolution 1718.
27
The
Council demanded, inter alia, that North Korea “not conduct any further nuclear test
or launch of a ballistic missile” as well as “suspend all activities related to its ballistic
missile program” and “abandon all nuclear weapons and existing nuclear programs
in a complete, verifiable and irreversible manner.”
28
The Council also asked its
Member States to freeze their assets and place a travel ban on people and businesses
involved in North Korea’s nuclear program, further ordering North Korea to return
to the Six-Party Talks ‘without precondition.’
29
Things, however, took a turn for the worse when North Korea carried out its
second underground nuclear test on May 25, 2009, with its yield estimated at 2.35
kilotons.
30
In response, on June 12, 2009, the Security Council unanimously adopted
Resolution 1874, imposing a ban on all arms transfers from and to North Korea.
31
The
Council authorized Member States to inspect the land, sea, and air cargo of North
Korean and destroy any goods suspected of being related to its nuclear program. As
inter alia, that Member States
’s nuclear program.
32
In spite of the Security Council’s strong sanctions, North Korea carried out
its third underground nuclear test on February 12, 2013.
33
On March 7, 2013, the
Security Council unanimously adopted Resolution 2094 against the nuclear test.
This resolution instructed North Korea to abandon all nuclear weapons and
existing nuclear programmes, in a “complete, verifiable and irreversible” manner
and immediately cease all related activities.”
34
The resolution also made some
26 D. Sanger, North Koreans Say They Tested Nuclear Device, N.Y. times, available at http://www.nytimes.
com/2006/10/09/world/asia/09korea.html?_r=1 (last visited on May 3, 2016).
27 S.C. Res. 1718, U.N. Doc. S/RES/1718 (Oct. 14, 2006), available at http://www.un.org/en/ga/search/view_doc.
asp?symbol=S/RES/1718(2006) (last visited on May 3, 2016).
28 Id. ¶¶ 2, 5, & 6
29 See UN slaps sanctions on North Korea, BBC news, available at http://news.bbc.co.uk/2/hi/asia-pacific/6051704.stm
(last visited on May 3, 2016).
30 Feng Zhao Lia, et al. Yield Estimation of the 25 May 2009 North Korean Nuclear Explosion, seismological society
oF america bull., available at http://www.bssaonline.org/content/102/2/467.abstract?sid=7c769220-2dfc-45b2-96d7-
73fef9aa8d48 (last visited on May 3, 2016).
31 Bureau of Public Affairs, Office of the Spokesman Washington, DC, North Korea Sanctions: Resolution 1718 versus
Resolution 1874, available at http://www.state.gov/r/pa/prs/ps/2009/06a/124709.htm (last visited on May 3, 2016).
32 S.C. Res. 1874, U.N. Doc. S/RES/1874 (June 12, 2009), ¶ 20, available at http://www.un.org/en/ga/search/view_doc.
asp?symbol=S/RES/1874(2009) (last visited on May 3, 2016).
33 See Essai nucléaire en Corée du Nord: Pour la Maison Blanche Pyongyang n’a pas la bombe H, 20 minutes, available
at http://www.20minutes.fr/monde/1760331-20160106-direct-essai-nucleaire-coree-nord-france-condamne-fermement
(last visited on May 3, 2016).
34 S.C. Res. 2094, ¶ 5, U.N. Doc. S/RES/2094 (March 7, 2013), available at http://www.un.org/en/ga/search/view_doc.
asp?symbol=S/RES/2094(2013) (last visited on May 3, 2016).
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transactions and bulk cash transfers involved in North Korea’s illicit activities.
Furthermore, interdiction and inspection of all suspicious ships and cargos also
became mandatory.
35
Pyongyang accused the US of triggering a nuclear war and
in 1953.
36
Both sides lost the chance at an exit from the nuclear impasse, finally
leading to the fourth nuclear test in January 2016.
4. Frustrations
A. Rule of Law
The North Korean nuclear weapons development has been one of the most serious
issues faced by the international community since the early 1990s. For the past
ten years, in particular, the UN Security Council has consistently delivered strong
however, they did not successfully stop the nuclear crisis. Such frustrations are
especially due to critical legal loopholes in the NPT. The core purpose of the NPT
is to prevent the spread of nuclear weapons and weapons technology, to promote
cooperation in the peaceful uses of nuclear energy, and to further achieve nuclear
disarmament and general and complete disarmament.
37
However, the NPT is
“recognized
nuclear weapon States,” who are legitimately entitled to have nuclear weapons
under the Treaty, and the 185 “other non-nuclear weapon States” who have
agreed never to acquire or develop nuclear weapons. This unbalanced bargain has
been maintained mainly through two legal and policy initiatives: (1) the ‘nuclear
umbrella,’ which “refers to a guarantee by a nuclear weapons state to defend a non-
nuclear allied state”
38
and (2) ‘nuclear disarmament,’ which refers to “reducing and
35 Victor Cha & Ellen Kim, UN Security Council Passes New Resolution 2094 on North Korea, Center for Strategic and
International Studies, available at http://csis.org/publication/un-security-council-passes-new-resolution-2094-north-
korea (last visited on May 3, 2016).
36 See L'ONU impose de nouvelles sanctions à la Corée du Nord, le monDe, available at http://www.lemonde.fr/asie-
pacifique/article/2013/03/07/l-onu-impose-de-nouvelles-sanctions-a-la-coree-du-nord_1844627_3216.html (last visited
on May 3, 2016).
37 UNODA, Treaty on the Non-Proliferation of Nuclear Weapons, available at http://www.un.org/disarmament/WMD/
Nuclear/NPT.shtml (last visited on May 3, 2016).
38 A. Persbo, Verification and Nuclear Disarmament, in global nuclear Disarmament: strategic, political anD
270 Eric Y. J. Lee
eliminating nuclear weapons.”
39
The nuclear umbrella system, however, has not
been fully successful on the Korean Peninsula, because nuclear defense levels of
South Korea. The nuclear disarmament system is, thus, seriously biased. In order
to realize global nuclear disarmament, nuclear-weapon States (“NWS”) should
gradually eliminate their nuclear arms under Article VI of the NPT. Despite global
denuclearization negotiations,
40
however, both the US and Russia each currently
deploy nearly a reported 2000 operational nuclear heads all over the globe for
their strategic interests.
41
They are even incurring a great deal of expenditure for
the development and deployment of nuclear weapons in the future.
42
North Korea
would severely criticize this hypocrisy and thereby justify its own nuclear weapons
development program.
43
Another serious problem regarding the NPT is that non-signatories who are
believed to possess nuclear weapons – India, Pakistan and Israel – have not been
sanctioned for their positions opting out of the NPT. Considering that North Korea
was severely sanctioned by Security Council Resolution 825 (1993) just for declaring
its withdrawal from the Treaty, these three countries are treated more favorably than
North Korea, which cried ‘unfairness’ on the part of the international community.
Actually, Article X of the NPT grants each party the right to withdraw from the
Treaty when “extraordinary events, related to the subject matter of this Treaty,
have jeopardized the supreme interests of its country”
44
by giving three months’
notice. Such an easy withdrawal route would attract more parties without much
introspection. This provision was presumed to be adopted in order to substitute
weak normal powers of the NPT with global extension of parties.
regional perspectives, ch. 6, n. 4 (N. Hynek & M. Smetana eds., 2016).
39 For details on the definition of nuclear disarmament, see J. Doyle, Why Eliminate Nuclear Weapons?, 55 iiss
survival: global politics anD strategy (2013), available at https://www.iiss.org/en/publications/survival/sections/
2013-94b0/survival--global-politics-and-strategy-february-march-2013-3db7/55-1-02-doyle-a88b(last visited on May 3,
2016).
40 For detail, see Strategic Arms Limitation Treaty, available at https://history.state.gov/milestones/1969-1976/salt;
Strategic Arms Reduction Treaty, available at http://www.nti.org/learn/treaties-and-regimes/treaties-between-united-
states-america-and-union-soviet-socialist-republics-strategic-offensive-reductions-start-i-start-ii (all last visited on May
3, 2016).
41 See The Nuclear Threat Initiative, available at http://www.nti.org/learn/countries/russia/nuclear (last visited on May 3,
2016).
42 See The Costs of U.S. Nuclear Weapons, available at http://www.nti.org/analysis/articles/costs-us-nuclear-weapons (last
visited on May 3, 2016).
43 See KCNA detailed report on circumstances of DPRK's withdrawal from NPT, available at http://caledavis.com/
Sources/2003/KCNADetailedReportOnNPTWithdrawal.pdf (last visited on Apr. 30, 2016).
44 NPT art. V(1). [Emphasis added]
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Today, ‘nonproliferation’ is aligned with ‘nuclear terrorism.’
45
It is, however,
unequal to the North Korean nuclear test because ‘terrorism’ is mainly associated
with Non-State Actors (“NSAs”).
46
North Korea does not qualify as an NSA, but a
UN Member State out of the purview of the NPT. It can effectively bind North Korea
only when each NWS is respecting those rules and substantially reducing its nuclear
weapons. Without the sincere devotion of each NWS to a nuclear free world, North
Korea’s recalcitrant behavior is likely to continue.
B. Governance
North Korea has been trying to develop nuclear weapons in order to overcome
its regime crisis in the post-Cold War era. Following the destruction of the former
Soviet Union and other socialist allies in the 1990s, as well as China’s balanced
approach toward the two Koreas, North Korean leadership was getting concerned
about its physical security and decided to go nuclear.
The nuclear weapons development program lies in a critical point of contention
in regional as well as world politics. It was a kind of ‘trump card’ for the late Kim
Jong Il to defend his regime against the severe crises from both the inside and
outside, and thereby successfully shift power to his son, Kim Jong Un. Currently,
the nuclear weapons program is not only an efficient measure for North Korea
to compensate for its inferiority in its conventional arms race with South Korea,
47
but also a leverage for negotiations with the US and China. What if North Korea
had abolished its nuclear weapons program in its early stage? Kim would have
supposed his regime could not be sustained. Iran and Libya were probably good
lessons for Kim Jong Un. This is precisely why North Korea desperately clings to its
nuclear weapons program, despite the severe condemnation and isolation from the
45 US Dept. of State, The Threat of Nuclear Terrorism, Diplomacy in Action, Sept. 18, 2015, available at http://www.
state.gov/t/us/2015/247083.htm. For details, see Global Initiative to Combat Nuclear Terrorism, available at http://
www.gicnt.org (all last visited on Apr. 18, 2016)
46 U Schneckener, Fragile statehood, armed non-state actors and security governance, in private actors anD
security governan ce 24-38 (A. Bryden & M. Caparini eds., 2006), available at https://scholar.google.co.kr/sc
holar?q=Fragile+Statehood%2c+Armed+Non-State+Actors+and+Security+Governance+&btnG=&hl=en&as_
sdt=0%2c5&as_vis=1 See also M. O'Connell, Enhancing the Status of Non-State Actors Through a Global War
on Terror?, 43 colum J. transnat'l l. 436-58 (2005), available at http://scholarship.law.nd.edu/cgi/viewcontent.
cgi?article=1087&context=law_faculty_scholarship (all last visited on Apr. 30, 2016).
47 D. Blair, North Korea v South Korea: How the countries' armed forces compare, telegraph, Sept. 15, 2015, available
at http://www.telegraph.co.uk/news/worldnews/asia/northkorea/11603665/North-Korea-v-South-Korea-How-the-
countries-armed-forces-compare.html. See also G. McCafferty, Anniversary parade provides rare glimpse into North
Korea's military might, CNN, Oct. 10, 2015, available at http://edition.cnn.com/2015/10/09/asia/north-korea-military-
might (all last visited on Apr. 30, 2016).
272 Eric Y. J. Lee
international community.
Up until 2008, North Korea’s denuclearization question had been discussed via
the Six-Party Talks. As mentioned above, the talks were triggered by the second
nuclear crisis, in which North Korea re-declared withdrawal from the NPT on
January 10, 2003, against the “tailored containment policy” of the US.
48
In spite of the
seemingly successful result with the September 19 Joint Statement,
49
the Six-Party
Talks are not working anymore because of North Korea’s nuclear and missile (rocket)
tests. No more talks have been held since late 2008.
Table 2: The Six-Party Talks against North Korea’s
Nuclear Weapons Development
50
Round Period Results
1st Aug. 27 –Aug 29, 2003 To agree on a further round of talks
2nd Feb. 25 – Feb. 28, 2004
To announce the denuclearization of the Korean
resolve crises
3rd June 23 – June 26, 2004
To stress denuclearizing the Korean Peninsula
within the specific scope and time, interval, and
4th
Phase 1 July 26 –
Aug. 7, 2005
Joint Statement (Sept. 19): North Korea to agree to
abandon all nuclear weapons and nuclear programs
and return to the NPT as soon as possible. The US
and North Korea will work to normalize ties, respect
each other’s sovereignty, and exist peacefully
together.
Phase 2 Sept. 13 –
Sept. 19, 2005
48 Supra note 22, at 114. See also M. Gordon, U.S. Readies Plan to Raise Pressure on North Koreans, Dec. 29, 2002, N.Y.
times, available at http://www.nytimes.com/2002/12/29/international/asia/29KORE.html?pagewanted=all (last visited
on May 3, 2016).
49 US Dept. of State, Joint Statement of the Fourth Round of the Six-Party Talks, Beijing 19 September 2005, Diplomacy
in Action, available at http://www.state.gov/p/eap/regional/c15455.htm (last visited on May 3, 2016).
50 Xiaodon Liang, The Six-Party Talks at a Glance, Arms Control Association, available at https://www.armscontrol.org/
factsheets/6partytalks (last visited on May 3, 2016).
East Asian Observer
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5th
Phase 1 Nov. 9 –
Nov. 11, 2005
Joint Statement (Feb. 13): North Korea will shut
down and seal the Yongbyon nuclear facility and
invite again IAEA personnel to conduct all necessary
parties in the six-party talks will provide emergency
energy assistance to North Korea in the initial phase
of 50,000 tons of heavy fuel oil, to commence within
60 days.
Phase 2 Dec. 18 –
Dec. 22, 2006
Phase 3 Feb. 8 –
Feb. 13, 2007
6th
Phase 1 July 18 –
July 20, 2007
their commitment to the past Joint Statement of
September 19, 2005 and February 13, 2007. North
programs and disable all facilities related to its
nuclear programs.
Phase 2 Sept. 27 –
Sept. 30 2007
Source: Compiled by the author
The current deadlock is caused by the failure of coordinating strategic interests
among the key actors of the Six-Party Talks. In particular, the US and North Korea
are seeking denuclearization from diametrically opposite sides. North Korea claims
that as nuclear weapons program is a self-defense measure from the potential
(nuclear) attack of the US and South Korea, their security should be guaranteed
51
North Korea requires the US to conclude
the ‘peace treaty,’ which finalizes the current ‘armistice’ and to lift the sanctions
for economic recovery.
52
mainstream circle, however, has maintained a totally different stance. They might
want fundamental ‘regime change.’ Especially, ‘Neoconservatives’under the Bush
administration pressed North Korea to the tip of the cliff by declaring the then
Kim Jong Il regime an “axis of evil”
53
and an “outpost of tyranny.”
54
Such a hostile
standoff provoked North Korea to deny even a tiny chance of consensus for
and missile tests. Because of this vicious circle, the only negotiation forum available
51 Supra note 17, at 800.
52 See North Korea says peace treaty, halt to exercises, would end nuclear tests, reuters, Jan. 16, 2016, available at
http://www.reuters.com/article/us-northkorea-nuclear-usa-idUSKCN0UT201 (last visited on May 3, 2016).
53 See 2002 State of Union Address, The White House, available at http://georgewbush-whitehouse.archives.gov/news/
releases/2002/01/20020129-11.html (last visited on May 3, 2016).
54 See Rice names 'outposts of tyranny,' BBC news, Jan. 19, 2005, available at http://news.bbc.co.uk/2/hi/americas/
4186241.stm (last visited on May 3, 2016).
274 Eric Y. J. Lee
has not been open for the past eight years. The more the US and South Korea press
North Korea, the more North Korea resists with nuclear tests.
5. Two-Track Approach
As mentioned above, Resolution 2270 releases tougher sanction measures than
any other resolutions adopted by the Security Council concerning nuclear tests. It
contains “ ” which were mentioned in Resolution 2094
(2013). Resolution 2270 was followed by the US Congress’ “North Korea Sanctions
and Policy Enhancement Act of 2016”
55
accompanied by the ‘secondary boycott’
provision (February 10) as well as South Korea’s closing of the Kaesong Industrial
Complex, which was a symbol of inter-Korean economic cooperation (February
11).
56
Both the US and South Korea expect North Korea to ultimately abandon its
nuclear weapons program. China, however, has the key to effectively implementing
the resolution. This is because unprecedentedly tough sanctions could be adopted
as a compromise between the US and China. Chinese Foreign Minister Wang Yi
said: “Sanctions are necessary, and maintaining stability is the pressing priority, and
only negotiations could provide a fundamental solution 制裁是必要手段，维稳是当务
之急，谈判是根本之道.”
57
In this sense, China is willing to defend its strategic interest
in this region by sustaining the political status quo of North Korea’s Kim Jong Un
regime.
58
It would be, however, inconsistent with the Obama administration’s “Pivot
to Asia”
59
Their standoff could seriously exacerbate the North Korean nuclear crisis.
The best option to break such ongoing nuclear deadlock will be the “Two-
Track Approach,” which conceives both ‘peacemaking’ and ‘denuclearization’
55 See H.R.757 - North Korea Sanctions and Policy Enhancement Act of 2016, 114th Congress (2015-2016), available at
https://www.congress.gov/bill/114th-congress/house-bill/757 (last visited on May 3, 2016).
56 J. McCurry, Seoul shuts down joint North-South Korea industrial complex, guarDian, Feb. 10, 2016, available at
http://www.theguardian.com/world/2016/feb/10/seoul-shuts-down-joint-north-south-korea-industrial-complex-kaesong
(last visited on May 3, 2016).
57 Yunbi Zhang, Two Sessions: 'Flexibility vital' to solve nuclear issue, china Daily, Mar. 9, 2016, available at http://
iosnews.chinadaily.com.cn/newsdata/news//201603/09/379228/article.html (last visited on Apr. 11, 2016).
58 See China underscores equal implementation of UN resolution on DPRK, china Daily, Mar. 7, 2016, available at
http://www.chinadaily.com.cn/world/2016-03/07/content_23774260.htm (last visited on May 3, 2016).
59 Eric Yong Joong Lee, Trans-Pacific Partnership (TPP) as a US Strategic Alliance Initiative under the G2 System:
Legal and Political Implications, 8 J. east asia & int'l l. 337-9 (2015), available at http://yijuninstitute.blogspot.
kr/2015/12/trans-pacific-partnership-tpp-as-us.html (last visited on May 3, 2016).
East Asian Observer
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simultaneously. It is a more proactive initiative developed from “a comprehensive
and integrated approach” of the William Perry Report.
60
Framework and the September 19 Joint Statement refer to a peace regime based on
mutual trust between the US and North Korea. Therefore, a peace treaty should be
the other important agenda item for denuclearization negotiation. A stable peace
regime will be a basis for a nuclear-free Korean Peninsula. Such a new approach will
provide ample space to discuss the nuclear crisis in a more peaceful setting.
As an acting plan for peace regime building, the nuclear weapons free zone in
Northeast Asia (“NEA-NWFZ”) should be suggested. It is a fair and reasonable
way to bring North Korea back to the contemporary nuclear deterrence system. The
NWFZ would mean “
to manufacture, acquire, test or possess nuclear weapons.”
61
any group of States, in the free exercise of their sovereignty, has established by virtue
of a treaty or convention whereby: (a) The statute of total absence of nuclear weapons
to which the zone shall be subject, including the procedure for the delimitation of the
to guarantee compliance with the obligations deriving from that statute.
62
NWFZ is closely associated with core values of the NPT for nuclear arms control. NPT
also provides the right for any group of States to conclude regional treaties in order
to assure a total absence of nuclear weapons in their respective areas.
63
According to
regions.
64
The NEA-NWFZ would include the Korean Peninsula, three prefectures of
northeastern mainland China, Japan, and Far-East Russia. In this geographical scope,
the six countries and the UN can mutually guarantee not to manufacture, acquire,
60 W. Perry, Review of United States Policy towards North Korea: Findings and Recommendations, Unclassified Report,
Oct. 12, 1999, available at http://belfercenter.hks.harvard.edu/files/1997%20NKPR.pdf (last visited on May 3, 2016).
61 Arms Control Association, Nuclear-Weapon-Free Zone at a Glance, Fact Sheets & Briefs, available at https://www.
armscontrol.org/factsheets/nwfz (last visited on May 3, 2016).
62 G.A. Res. 3472/B(XXX), U.N. Doc. A/10027/Add.1 (Dec.11, 1975), available at http://www.un.org/disarmament/
HomePage/ODAPublications/DisarmamentStudySeries/PDF/A-10027-Add1.pdf. For details, see Nuclear-Weapon-
Free Zones, 1975 U.N.Y.B. at 8-10, available at http://www.unmultimedia.org/searchers/yearbook/search.jsp?q=1975
(all last visited on May 3, 2016).
63 NPT art. VII.
64 Supra note 17, at 810-2.
276 Eric Y. J. Lee
test, accrue, or possess nuclear weapons. There is no objection from the US, China,
or Russia. North Korea is also affirmative to this regional NWFZ.
65
UN Secretary
66
for denuclearization would place North Korea back into the nonproliferation system.
The North Korean nuclear weapons development program must be abolished
in a “comprehensive, verifiable and irrevocable” manner as soon as possible.
Denuclearization of North Korea, however, is not pre-condition for the process,
but the final result of all the negotiations. Technically, a sudden denuclearization
is impossible. What is urgently needed is a nuclear free Korean Peninsula, not a
fundamental regime change of North Korea. A freer and more open North Korea
should be coming after painstaking course.
6. Conclusion
The fourth Washington Nuclear Security Summit adopted the Communiqué on
April 1, 2016 (hereinafter, Washington Communiqué). The leaders agreed to strengthen
“the nuclear security architecture at national, regional and global levels, including
through broadened ratification and implementation of international legal
instruments regarding nuclear security.”
67
The Washington Communiqué is deeply concerned with North Korea’s nuclear
weapons development as a serious violation of international law and the global consensus
for a nuclear secure world. In Washington, they have agreed to cooperate to ease
nuclear tension. Nonetheless, North Korea is not expected to stop the nuclear weapons
program because of the loopholes of the current NPT system and the distorted
structure of regional politics, which can be understood as a ‘Hostile Co-existence.’Both
sides take advantage of this continuing pattern. Each side has been stimulating
the other in order to expand its domestic and regional interests. The 2016 US–
65 U.N. Doc. S/23172 (Oct.28, 1991), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/23172 (last
visited on May 3, 2016).
66 UNODA, The United Nations and security in a nuclear-weapon-free world: The Secretary-General's five point proposal
on nuclear disarmament, available at http://www.un.org/disarmament/WMD/Nuclear/sg5point.shtml (last visited on
May 3, 2016).
67 See Nuclear Security Summit 2016 Communiqué, The White House Office of the Press Secretary, Apr. 1, 2016,
available at https://www.whitehouse.gov/the-press-office/2016/04/01/nuclear-security-summit-2016-communiqu%
C3%A9 (last visited on May 3, 2016).
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South Korean Combined Forces Command’s Key Resolve and Foal Eagle exercise
68
showed a notable example of how both sides manipulated military tension suddenly
escalating between them. This was the largest joint military drill ever conducted,
focusing on so-called ‘Operation 5015,’ which calls for prompt retaliation after North
Korean attacks or even a preemptive strike on the North’s core military facilities and
weapons as well as on its top leaders.
69
North Korea responded to this grand military
demonstration with a few short-range missile launches, an exposure of its nuclear
weapons, and submarine-launched ballistic missile (“SLBM”) launches. Some
contents of ‘Operation 5015’ unofficially refers to ‘decapitation’of North Korean
leader Kim Jong Un. However, it might be a violation of contemporary international
law prohibiting acts of aggression.
70
As just an economic sanction is less fearful than a regime collapse for the North
Korean leadership, they would stop neither nuclear tests, nor the nuclear program.
North Korea has repeatedly said that nuclear weapons are not bargaining chips.
It is, however, a typical tactics for them to take initiative in the negotiations. A
fundamental regime change in North Korea is not a feasible policy option for
China, either, due to its deep interest in North Korea’s geopolitical position as
a bridgehead resisting American hegemonic domination of East Asia by way of
such strategic initiatives as the Missile Defense initiative. It is well mirrored in the
on-going Sino-US debate regarding the deployment of THAAD in South Korea.
71
Some people would expect the similar breakdown of Eastern European socialist
regime in North Korea. The current situation is totally different from that of the
Eastern European countries in the early 1990s, because their socialist regimes were
suddenly demolished following the destruction of the Soviet Union. The international
community should focus on abolishing North Korea’s nuclear weapons program
before Pyongyang miniaturizes a nuclear warhead. This will be possible if they
adhere to the “two-track approach.”
Framework and the September 19 Joint Statement is the starting point. The longer
they maintain silence, the more they will witness an escalation of the nuclear crisis.
68 J. Schogol & K. Miller, 315,000 U.S. and South Korean troops begin massive exercise as North threatens war, marine
corps times, Mar. 7, 2016, available at http://www.marinecorpstimes.com/story/military/2016/03/05/us-holds-military-
exercise-south-korea-north-threatens-war/81320402 (last visited on May 3, 2016).
69 Sung-jin Choi, Operations Plan 5015, korea times, Oct. 7, 2015, available at http://www.koreatimes.co.kr/www/
news/opinon/2015/10/202_188216.html (last visited on May 3, 2016).
70 U.N. Charter ch. VII.
71 Myo-Ja Ser, China reasserts its opposition to Thaad, korea Joongang Daily, Apr. 2, 2016, available at http://
koreajoongangdaily.joins.com/news/article/article.aspx?aid=3017001 (last visited on May 3, 2016).
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