North Korea: Provocateur?

BY MARK DeSANTO — On Tuesday, October 9, 2012, North Korea officials claimed that the country possesses long-range missiles capable of reaching the United States’ mainland.

North Korea’s statements came just two days after the U.S. reached an agreement with South Korea allowing Seoul to increase its missile range from 186 miles to 497 miles. The pact with the U.S. allows South Korean missiles to strike the entirety of North Korea’s territory.

The claim from Pyongyang, the capital city of North Korea, comes amid increased tensions between the two Koreas after the North test-fired a long-range rocket in April. That rocket exploded shortly after it was launched.

An unidentified spokesman at the National Defense Commission conceded to the Korean Central News Agency that North Korea’s statements about their long-range missile capabilities were made in response to South Korea’s recent agreement with the United States. The spokesman stated, “[w]e do not hide … the strategic rocket forces are keeping within the scope of strike not only the bases of the puppet forces and the U.S. imperialist aggression forces’ bases in the inviolable land of Korea but also Japan, Guam and the U.S. mainland,” explaining that the country will bolster its military preparedness in response to the U.S. – South Korea agreement.

The North Korean official’s statements are especially concerning in light of the country’s supposed nuclear weapon advancements. The unknown spokesman further stated that the country would match any enemy “nuclear for nuclear, missile for missile,” adding that the missile deal between the U.S. and South Korea was “another conspiracy of the master and the stooge to push the situation on the Korean Peninsula to the extreme… and ignite a war.”

The United States maintains that it has no intention of attacking North Korea. South Korean national security adviser Chun Yung-woo explained “[t]he important goal in revising the missile pact is to deter armed provocation from North Korea …. If North Korea is to attack or provoke, we are able to incapacitate its nuclear and missile (capabilities) in the early stage. We have guaranteed various capabilities to protect the life and safety of our people.”

One possible interpretation of South Korea’s comments and recent attempted missile launches is that they are threatening to use armed force against foreign states, the U.S. and South Korea, in particular. Such use of force has serious legal implications.

The United Nations Charter, Article 2(4) provides, “all members shall refrain in their international relations from the threat or use of force against … any state.” Importantly, the United Nations Charter condemns not only the use of force, but the threat of the use of force by states, as well.

Article 2(4)’s general prohibition against the threat or use of force was interpreted by the International Court of Justice (“ICJ”) to be a principle of customary international law, “having the character of jus cogens.”[1] Jus cogens (otherwise referred to as “peremptory norms”) are fundamental principles of international law.  Any violation of jus cogens, notwithstanding membership in the United Nations, is strictly prohibited.  It is very rare that the international law community considers an act to be violations of jus cogens. Basic examples of jus cogen principles are, inter alia, the prohibition of genocide, slavery, and maritime piracy.

Notably, the ICJ’s determination that the prohibition against the threat or use of force rises to the level of jus cogens in the Nicaragua v. United States of America case was a monumental development in international law, setting a new precedent for further scrutinizing states’ threat or use of force. In Nicaragua v. United States, Nicaragua accused the United States of violating Article 2(4) and international law by offering aid and support to rebels (referred to as the  “Contras”) in their rebellion against the Nicaraguan government.[2]

In particular, Nicaragua charged that the United States’ navy vessel occupation of Nicaraguan ports was a “threat or use of force” against the sovereign integrity of Nicaragua in contravention of international law.[3] In holding that the United States had, in fact, violated international law, the ICJ reasoned that the threat of armed attack is prohibited conduct that rises to the level of jus cogens.[4]

The pronouncement in the Nicaragua case of the prohibition against the threat of force expands beyond the confines of the United Nations Charter and applies to all states, not just those that are members of the United Nations or signatories of the United Nations Charter. Therefore, if North Korea’s statements are construed as threats to use armed force against foreign states, then they have violated jus cogens. Such violations are condemnable to the highest degree by not only the United Nations, but all states and the international law community, as a whole. Furthermore, North Korea has been a member of the United Nations since September 17, 1991. Therefore, the United Nations could take action to reprimand the state for such violations and misconduct.[5]

In staunch contrast with Article 2(4) is Article 51, which permits states to engage in acts of self-defense. Within this grant of authority is also the right of collective self-defense. Collective self-defense allows members states to join a fellow member that has been the victim of an armed attack, in order to aid them in their self-defense measures against the aggressor.

Notably, the United States and South Korea are members of the United Nations; therefore, both countries could assist one another in executing self-defense military action against North Korea pursuant to Article 51’s collective self-defense.

Nevertheless, there is ample international law precedent discussing the level of “armed attack” necessary in order to permit self-defense, collective or individual. It has been found that in order for the Article 51 to apply to member-states, there must have been an actual armed attack against a member of the United Nations.

In analyzing what constitutes an “armed attack”, the ICJ limited the scope of Article 51 by stating that assistance to rebels is not an armed attack justifying the use of force in self-defense.[6] Accordingly, North Korea’s threat of long-range missiles having the capability of reaching foreign territories is most likely insufficient to warrant a collective self-defense response based on the facts of Nicaragua v. United States.

That case is factually distinguishable from the facts present here; the United States occupied Nicaraguan ports with navy vessels, whereas North Korea has simply made unsettling comments without any accompanying tangible maneuvers. As such, North Korea’s comments are not likely sufficiently analogous to warrant a similar result as the ICJ in Nicaragua v. United States, although they are unsettling, nonetheless.