dprk (asada) in 9-3 jcsl (2004)

ARMS CONTROL LAW IN CRISIS? A STUDY OF THENORTH KOREAN NUCLEAR ISSUE

Masahiko Asada*

ABSTRACTThe North Korean nuclear issues have exposed the international community to a greatproliferation risk for more than ten years. They have grown particularly serious sinceNorth Korea (Democratic People’s Republic of Korea, DPRK) reportedly admitted inOctober 2002 that it had clandestinely pursued development of nuclear weapons basedon uranium enrichment. Legally speaking, the North Korean proliferation risk reachedits worst point in January 2003, when Pyongyang announced its withdrawal from theNuclear Non-Proliferation Treaty (NPT). However, that was not the first instance inwhich North Korea had declared withdrawal. They had done so in March 1993, but atthat time the declared withdrawal was suspended one day before its effectuation (with-drawal takes effect three months after its notification). Given the complicated nature ofthe situation, there can be several ways of interpreting the North Korean status underthe NPT. This article tries to examine four such interpretations, including those given byNorth Korea itself and by the International Atomic Energy Agency (IAEA). It will alsogive some thought to the North Korean obligation to accept IAEA safeguards under theSafeguards Agreement with the Agency and under other legal and political arrange-ments.

1 INTRODUCTION

The 11 September 2001 terrorist attacks on the World Trade Center have led to theUnited States adopting a new national security concept.1 In an attempt to apply thenew concept, the US government started a war against Iraq in March 2003 tocontain the perceived proliferation risks of weapons of mass destruction (WMD).

Contemporaneously, a no less grave WMD-related issue revealed itself in EastAsia. It was reported in October 2002 that when US Assistant Secretary of StateJames Kelly visited North Korea (Democratic People’s Republic of Korea, DPRK),one of his counterparts, Deputy Foreign Minister Kang Sok Joo, admitted that theDPRK has clandestinely pursued development of nuclear weapons based onuranium enrichment.2 This was the prelude to a renewed nuclear crisis on theKorean Peninsula. The crisis reached a climax when Pyongyang announced itswithdrawal from the Nuclear Non-Proliferation Treaty (NPT) on 10 January 2003.

This was, however, not the first instance in which the DPRK declared its inten-tion to withdraw from the NPT. It had already done so in March 1993. At that time,

Journal of Conflict & Security Law (2004), Vol. 9 No. 3, 331–355

Journal of Conflict & Security Law Vol. 9 No. 3 © Oxford University Press 2004; all rights reserved

* Professor of International Law, Kyoto University, Japan.1 See, e.g., White House, The National Security Strategy of the United States of America,

September 2002, 5–7, 13–16; National Strategy to Combat Weapons of Mass Destruction,December 2002, 3.

2 Washington Post, 17 October 2002; New York Times, 17 October 2002.

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Pyongyang decided later to ‘suspend’ the effectuation of its withdrawal from theNPT after conducting bilateral talks with the United States. This time, no suchdecision was made. Notwithstanding, there is a debate as to whether North Koreahas already withdrawn from the NPT or still remains a party to the Treaty. Thereis even an attempt to deliberately obfuscate the legal situation with regard to NorthKorean status under the NPT.

This article will analyse the legal arguments that have been put forward on thequestion of the DPRK’s legal status under the NPT as well as other related issues.In doing so, it will try to show how difficult it would be to resolve the problemsinvolved and, at the same time, how flawed some of the legal arguments that havebeen propounded are. Such an exercise would also shed light on the political inten-tions behind the international community’s decision to leave the legal questionaside for the resolution of the immediate crisis. Before going into the detailedanalysis of the legal arguments, it would be pertinent to trace the historicaldevelopment of the North Korean nuclear issue.

2 HISTORY OF NORTH KOREAN NUCLEARDEVELOPMENT

2.1 North Korea’s Incorporation in the Nuclear Non-Proliferation Regime

It was in 1965 that North Korea started to operate its first nuclear research reactorat Yongbyon, a place that later became a nuclear development centre of thecountry that caused much concern in the 1990s. Although the first reactor wasprovided by the Soviet Union, North Korea started to construct a graphite-moderated reactor for itself late in the 1970s, since the country produces bothnatural uranium and graphite that are needed for operating that type of reactor.

At the same time, Pyongyang embarked on a project of light-water reactorsafter deciding to regard them as the main means of electricity production in thecountry.3 The Soviet supply of light-water reactor to North Korea was conditionedon the latter’s accession to the NPT4 because North Korea, a member of the Inter-national Atomic Energy Agency (IAEA) since September 1974,5 had been outsidethe NPT regime. Pyongyang accepted this deal and acceded to the NPT on 12December 1985. However, the light-water reactor project itself encountered

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3 UN doc. S/2003/91, 27 January 2003, 5.4 Ibid.5 According to Professor Michael Mazarr, Pyongyang’s accession to the IAEA was

calculated to create an image of compliance among members of the internationalcommunity and magnify world pressure on South Korea to abandon its nuclearprogramme, which was motivated by the Nixon or Guam Doctrine of 1968 and the ensuingUS troop reduction in South Korea. Michael J. Mazarr, North Korea and the Bomb: ACase Study in Nonproliferation (1995), 25–30.


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financial problems and was frustrated with the demise of the Soviet Union, whilethe fact that Pyongyang had acceded to the Treaty remained.

According to article 3 of the NPT, non-nuclear-weapon state parties are obligedto accept full-scope safeguards by concluding an agreement with the IAEA. Theymust conclude the agreement no later than 18 months after the entry into force ofthe Treaty for them. In the North Korean case, they had not done so more than sixyears after acceding to the Treaty. They attributed the cause for the failure partlyto the presence of US tactical nuclear forces in the South.

On 27 September 1991, President Bush of the United States announced adrastic set of decisions and proposals for US and Soviet nuclear forces. Theyencompassed the elimination of the US ‘entire worldwide inventory of ground-launched, short-range nuclear weapons’. It resulted in the complete withdrawal ofUS nuclear weapons from South Korea and the latter’s complete denuclearisation.6

The US decisions and proposals were mainly motivated by the danger in whichSoviet tactical nuclear weapons were placed after the failed coup in August 1991in that country,7 but might also have been aimed at responding to the North Koreanconcern as an additional factor.

With the realisation of denuclearised South Korea, and presumably of thedenuclearised Korean Peninsula, the North and South proceeded on 20 January1992 to sign a denuclearisation agreement entitled, ‘Joint Declaration on the Denu-clearization of the Korean Peninsula’.8 This Declaration, though only politicallybinding,9 went further than the usual nuclear-weapon-free zone treaties. Unlike thelatter treaties, the Joint Declaration was not only to prohibit the testing, manu-facture, production, receipt, possession, storage, deployment and the use of nuclearweapons, but it was also to proscribe the possession of nuclear reprocessing anduranium enrichment facilities even for peaceful purposes. This Declaration enteredinto force on 19 February 1992.

At around the same time, Pyongyang moved finally to conclude a safeguardsagreement with the IAEA, which was signed on 30 January 1992 and entered into

Arms Control Law in Crisis? 333

6 Although the US government did not formally declare that South Korea is now nuclearfree because of its ‘Neither Confirm Nor Deny (NCND)’ policy, South Korean PresidentRoh Tae Woo announced on 18 December 1991 that ‘there do not exist any nuclearweapons whatsoever, anywhere in the Republic of Korea’. Mazarr, op.cit., 67–68.

7 Jack Mendelsohn, ‘Bush Announces Unilateral Cuts in Tactical Weapons’ Alerts’ (1991)21(8) Arms Control Today 21.

8 For the text of the Joint Declaration, see CD/1147, 25 March 1992, 8–9. While this CDdocument says that the Joint Declaration was signed on 20 January 1992, there are othermaterials that say that the Joint Declaration was signed on 31 December 1991. See, e.g.,Leon V. Sigal, Disarming Strangers: Nuclear Diplomacy with North Korea (1998), 32.

9 That the Joint Declaration is a political and non-legal document was confirmed byAmbassador Chun Yung-woo, Deputy Permanent Representative of the Republic ofKorea to the United Nations, in an interview by the author on the occasion of the UNConference on Disarmament Issues in Osaka, 21 August 2003. Incidentally, there could beno state-to-state relations between the two Koreas, according to the preamble to the‘Agreement on Reconciliation, Non-aggression and Exchanges and Cooperation betweenthe South and the North’, signed on 13 December 1991. CD/1147, 25 March 1992, 2.

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force on 10 April of the same year – nearly five years later than required. As anelement leading to these developments, it was important that the United States andthe Republic of Korea had repeatedly signaled that they would cancel for that yearthe US-South Korean military exercises, ‘Team Spirit’, if the North signed theIAEA agreement or the inter-Korean talks on nuclear issues progressed.10 ‘TeamSpirit’ exercises had been conducted annually since 1976 and were labelled by theNorth as a nuclear war rehearsal against it.

2.2 First North Korean Nuclear Crisis (Phase-1): Announcement of Withdrawalfrom the NPT and Its Suspension in the US-DPRK Joint Statement in 1993

Pursuant to article 62 of the Safeguards Agreement between North Korea and theIAEA, Pyongyang submitted on 4 May 1992 the Initial Report on nuclear materialsubject to safeguards under the Agreement; and pursuant to article 71, the IAEAbegan ad hoc inspections in May to verify the correctness and completeness of theinformation contained in the Initial Report. As a result of the inspections, someinconsistencies were revealed in July between the information contained in theInitial Report and the findings of the Agency’s inspection activities.

According to the Agency Director General, Hans Blix, the inconsistenciesincluded the following points:

• Nuclear waste which was stored within the compound of the Radio-chemical Laboratory (reprocessing facility) proved to have an isotopiccomposition indicating that some plutonium should exist which has notbeen declared;

• Sample analysis of the plutonium which has been declared indicates thatthere should be some nuclear waste which has not yet been made avail-able for sampling and analysis.11

After several exchanges of letters and visits between the IAEA and North Korea,ambiguities still remained. With the North Korean refusal to provide access to thespecified additional sites on the ground that they are non-nuclear and military sites,Director General Blix on 9 February 1993 requested North Korea to accept aspecial inspection in accordance with article 73 of the Safeguards Agreement.12 On25 February 1993, after being faced with the North Korean refusal of the request,

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10 In fact, the Korean Central News Agency (KCNA) specifically referred to the SouthKorea-US decision on the ‘Team Spirit’ as an important element that led to the NorthKorean signing of the Safeguards Agreement with the IAEA. UN doc. S/2003/91, 6.

11 See ‘Statement of Hans Blix, Director General, IAEA, at Informal Briefing of UnitedNations Security Council regarding the Democratic People’s Republic of Korea (DPRK)’,New York, 6 April 1993.

12 Western intelligence agencies’ provision of information to the IAEA about suspectednuclear waste storage sites which North Korea had failed to declare to the Agency alsocontributed to the Agency Director General to request a special inspection. DunbarLockwood and Jon Brook Wolfsthal, ‘Nuclear Developments and Proliferation’ (1993)SIPRI Yearbook, 244.


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the Agency’s Board of Governors adopted a resolution (GOV/2636), calling uponPyongyang to respond positively and without delay to the Director General’srequest.13 Special inspections are those that may be conducted ‘if the Agencyconsiders that information made available by the Democratic People’s Republic ofKorea . . . is not adequate for the Agency to fulfil its responsibilities under [theSafeguards] Agreement’.14 And they would involve access to information and loca-tions other than those for ad hoc and routine inspections.

The DPRK responded to these demands by declaring on 12 March 1993 itsdecision to withdraw from the NPT. In doing so, it referred to ‘a grave situation’created and ‘abnormal situation’ prevailing in North Korea, specifically citing theresumption of the ‘Team Spirit’ joint military exercises in 1993 and the IAEA’spassing of a resolution aimed at forcing a ‘special inspection’ of North Koreanmilitary installations as well as some of the IAEA officials’ lack of ‘impartiality andstrict neutrality’. Regarding the IAEA officials, Pyongyang claimed that they arebiased because they stubbornly insist on a special inspection of North Koreanmilitary bases while ignoring the North’s demand for an inspection of the US nuclearbases in the South.15

According to the NPT, a withdrawal would not take effect immediately butthree months after its notification to all other parties to the Treaty as well as to theUN Security Council (art. 10). During this three-month period, the internationalcommunity would endeavour to have the withdrawing party change its decision.

On 1 April 1993, the IAEA’s Board of Governors adopted a resolution(GOV/2645) by a vote of 28 to 2 (China and Libya), with 4 abstentions (India,Pakistan, Syria and Vietnam). In the resolution, the Board found that the DPRKwas in non-compliance with its obligations under the Safeguards Agreement andthat the IAEA was not able to verify that there had been no diversion of nuclearmaterial to nuclear weapons, and decided to report these findings to the SecurityCouncil of the United Nations as required by article 12 C of the IAEA Statute.16

The Security Council, in turn, adopted a resolution (S/RES/825) on 11 May 1993with 13 in favour and 2 abstentions (China and Pakistan). It simply called upon theDPRK to ‘reconsider’ the announced decision to withdraw from the NPT and tohonour its non-proliferation obligations under the Treaty and comply with its safe-guards agreement with the IAEA.17

It was the United States that made the final attempt with moderate success topersuade Pyongyang to change its mind. On 11 June 1993, the eve of the withdrawaltaking effect, the United States and North Korea issued a Joint Statement, provid-ing that North Korea ‘has decided unilaterally to suspend as long as it considersnecessary the effectuation of its withdrawal from the [NPT]’.18


13 GOV/2636, 25 February 1993, reproduced in UN docs. A/48/133-S/25556, 12 April 1993,52–53. This resolution was adopted without a vote.

14 Article 73 (b) of the Safeguards Agreement.15 UN doc. S/25407, 12 March 1993, Annex.16 GOV/2645, 1 April 1993, reproduced in INFCIRC/419, 8 April 1993, Annex 1.17 SC Res. 825, 11 May 1993.18 ‘Joint Statement of the Democratic People’s Republic of Korea and the United States of

America’, New York, 11 June 1993.


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However, this represented only partial success, because North Korea did notrevoke its withdrawal from the NPT, but simply ‘suspend[ed]’ its effectuation inthe Joint Statement. This is one of the bases on which Pyongyang later began toclaim a ‘unique status’ under the NPT, meaning, according to the North, that it isno longer obliged to allow the inspectors to carry out their work under the Safe-guards Agreement and that it would accept inspections only to those facilities itchooses.19 Moreover, the Joint Statement did not address, let alone resolve, thequestions of verification inconsistencies and of special inspections that had led tothe first nuclear crisis on the Korean Peninsula. In that sense, there remainedcauses which might again precipitate the North Korean nuclear issue into a majorcrisis.

2.3 First North Korean Nuclear Crisis (Phase-2): De-fuelling of the Reactor andthe Agreed Framework in 1994

As feared, notwithstanding the calls of the IAEA and the international communityfor the North Korean acceptance of comprehensive safeguards as required underits Safeguards Agreement,20 Pyongyang restricted IAEA inspectors in their verifi-cation activities. It declared that the acceptance of inspection was not based on itsSafeguards Agreement but rather on its ‘unique status’ under the NPT. In order tobreak the stalemate, the IAEA adopted a resolution (GOV/2711) on 21 March1994 to re-submit the North Korean nuclear issue to the UN Security Council, bya vote of 25 to 1 (Libya), with 5 abstentions (Brazil, China, India, Indonesia, andLebanon).21 It is worth noting that China abstained this time, unlike the previousresolution submitting the issue to the Security Council in April 1993, when it hadvoted against it.

Despite such an international pressure, Pyongyang in May 1994, announced andactually moved to begin de-fuelling the 5 megawatts (MW) graphite-moderatedresearch reactor, the only graphite reactor in operation at Yongbyon, withouthaving IAEA inspectors present.22 The United States and the IAEA had insistedthat inspectors should be present for such an action, because spent fuel couldpotentially be reprocessed for use in nuclear weapons. Some time in June,North Korea appears to have completed the removal of 8000 rods of spent fuel

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19 IAEA, ‘Fact Sheet on DPRK Nuclear Safeguards’, Media Advisory 2002/52, 16 December2002.

20 For instance, the General Assembly adopted by an overwhelming majority a resolutionurging the DPRK to cooperate with the IAEA in the full implementation of thesafeguards agreement. GA Res. 48/14, 1 November 1993. It was adopted by a vote of 140to 1 (DPRK), with 9 abstentions.

21 GOV/2711, 21 March 1994. This time, the Security Council responded to the IAEAsubmission not by adopting a resolution but by making a Presidential Statement.S/PRST/1994/13, 31 March 1994.

22 According to Professor Leon Sigal, this move of Pyongyang was a provocative way to drawworld attention to its nuclear potential and away from its nuclear past. Sigal, op.cit., 113.


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(containing plutonium enough for producing 5 to 6 atomic bombs) from theresearch reactor without the IAEA presence and, even worse, placed them incooling ponds in such a way that the IAEA could not verify the history of the pastNorth Korean reprocessing activities. In a letter of 2 June to the Security Council,Director General Blix asserted that as a result of the de-fuelling of the reactor inthe way North Korea did it, the IAEA’s opportunity to segregate and secure fuelrods for later measurements had been lost and accordingly ‘the Agency’s ability toascertain, with sufficient confidence, whether nuclear material from the reactor hadbeen diverted in the past has also been lost’.23

Against this background, it was natural that the international communitymoved toward sanctions against North Korea, which had been alluded to for sometime and against which Pyongyang had warned by saying that ‘[s]anctions meanwar, and there is no mercy in war’.24

It was the IAEA that applied the first institutional sanctions against Pyongyang.On 10 June 1994, it decided to suspend non-medical technical assistance to theDPRK.25 North Korea responded to this decision three days later by announcingits withdrawal from the Agency.26 This did not mean that North Korea was releasedfrom obligations under the Safeguards Agreement, because the application ofIAEA safeguards in a state or region is not conditioned by its membership in theIAEA.27 It simply means that it does not participate in IAEA activities as amember state.

Many observers expected that the next step would be UN sanctions sponsoredby the Security Council. Since China abstained from voting on the IAEA sanctionagainst North Korea rather than voting against it, it was expected that it might dothe same in the Security Council, too.

What helped overcome this crisis and prevented a drift toward an eventual ‘war’was a visit by former US President Jimmy Carter to Pyongyang from 15–16 June1994. He met with North Korean leader Kim Il Sung and struck a deal, which waslater to be codified as the Agreed Framework. With the confirmation of the contentof the deal by Ambassador-at-Large Robert Gallucci, the drive for sanctions wassuspended.

After some delay due to the sudden death of Kim Il Sung on 8 July, ‘the AgreedFramework between the United States of America and the Democratic People’sRepublic of Korea’ was signed on 21 October 1994 in Geneva as a non-legal,political document.28 The heart of the Agreed Framework lies in a deal under


23 UN doc. S/1994/656, 2 June 1994, Annex, 3.24 Mazzar, op.cit., 160.25 (1994) 36(3) IAEA Bulletin, 58. The sanctions were decided upon by a vote of 28 to 1

(Libya) with 4 abstentions (including China).26 INFCIRC/447, 21 June 1994. 27 For instance, Taiwan has accepted IAEA safeguards though it is not a member of the IAEA. 28 According to the State Department, it deliberately chose the word ‘decided’, instead of

‘agreed’, as the language introducing the operative clauses in order to show that thedocument is non-legally binding. Unites States General Accounting Office, NuclearNonproliferation: Implications of the U.S./North Korean Agreement on Nuclear Issues(Letter Report, 10/01/96, GAO/RCED/NSIAD-97–8), Letter 3 and Appendix III.


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which North Korea will freeze its nuclear programme by first freezing and eventu-ally dismantling its three graphite-moderated reactors – with a generating capacityof 5 MW, 50 MW and 200 MW, the former two located in Yonbyon and the latterin Taechon, and the latter two being under construction at that time – and tworelated facilities (the reprocessing facility and the fuel fabrication plant);29 inreturn, the United States will make arrangements for the provision to the DPRKof a light-water reactor (LWR) project with a total generating capacity of approxi-mately 2,000 megawatts. The target date of 2003 was set for the completion of theLWR project. The United States also committed itself to provide 500,000 tons ofheavy oil annually to cover the energy shortage to be caused by the freeze of thegraphite reactors.30 To finance and construct the above project an internationalconsortium of states, called the Korean Peninsula Energy Development Organiz-ation (KEDO), was established in March 1995 by an Agreement on the Establish-ment of the KEDO (hereinafter cited as the ‘KEDO Agreement’) among theUnited States, South Korea and Japan.

Regarding the North Korean status under the NPT, the Agreed Frameworkstated that the ‘DPRK will remain a party to the Treaty . . . and will allowimplementation of its safeguards agreement under the Treaty’. But it only requiredNorth Korea to ‘come into full compliance with its safeguards agreement’, includ-ing taking all steps that may be deemed necessary by the IAEA, ‘[w]hen a signifi-cant portion of the LWR project is completed, but before delivery of key nuclearcomponents’.

2.4 Second North Korean Nuclear Crisis: Announcement of Withdrawal fromthe NPT in 2003

Although the KEDO and the DPRK successfully concluded an Agreement onSupply of a Light-Water Reactor Project to the DPRK (hereinafter cited as the‘Supply Agreement’) on 15 December 1995, the project suffered delays for anumber of reasons. But since the start of the construction phase in February 2000,the project had been on schedule.31 With the delivery of ‘key nuclear components’32

in prospect, the IAEA started to urge North Korea to extend its full cooperationwith the Agency. On 18 September 2000, for instance, on the occasion of the

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29 What ‘related facilities’ specifically mean is not provided for in the Agreed Frameworkitself but is said to be spelt out in the Confidential Minutes signed by both sides at the sametime as the Agreed Framework was signed.

30 It is said that 500,000 tons of heavy oil roughly corresponds to the three reactors to befrozen in terms of electricity generated.

31 IAEA, ‘Fact Sheet on DPRK Nuclear Safeguards’, Media Advisory 2002/52.32 What constitutes the ‘key nuclear components’ is not provided for in the Agreed

Framework itself but is said to be spelt out in the Confidential Minutes signed by bothsides of the Agreed Framework, and is later incorporated in the Supply Agreement(Annex 3, para. 4). According to it, ‘key nuclear components’ are the componentscontrolled under the Export Trigger List of the Nuclear Suppliers Group.


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forty-fourth Session of the IAEA General Conference, Director GeneralMohamed ElBaradei stated that since the entire verification process in NorthKorea may take between three and four years, ‘[w]e therefore need to start ourwork now’.33

While North Korea had not positively responded to such a call, a policy changehad come to be expected soon on the part of the other party to the Agreed Frame-work with the victory of George W. Bush in the US Presidential election inNovember 2000. As expected, President Bush reviewed the US policy towardNorth Korea, and announced the result of the review on 6 June 2001 by saying thatthe United States would pursue an ‘improved implementation of the AgreedFramework relating to North Korea’s nuclear activities’,34 an implicit call for NorthKorea’s early acceptance of special inspections.

At the same time, the Bush administration started to advocate a new nationalsecurity strategy. On 1 June 2002 at West Point and on 19 July at Fort Drum, NewYork, President Bush suggested that preemptive action would be necessary tocombat those with weapons of mass destruction.35 Earlier in his State of the Unionspeech on 29 January of the same year, the President had mentioned North Koreaas ‘a regime arming with missiles and weapons of mass destruction’ and as part ofthe ‘axis of evil’.36

Against this backdrop, the North agreed to resume the suspended talks withthe United States when Foreign Minister Paek Nam Sun met with Secretary ofState Colin Powell on the sidelines of the foreign ministerial meeting of theASEAN Regional Forum (ARF) in Brunei on 31 July 2002. After a discussion withSouth Korea regarding the specifics of the proposed trips to North Korea, AssistantSecretary of State for East Asian and Pacific Affairs James Kelly was sent toPyongyang from 3 to 5 October.

On 16 October 2002, Assistant Secretary Kelly disclosed the North Koreanconfession that it was pursuing a programme to build nuclear weapons usingenriched uranium. More precisely speaking, according to State Department’sSpokesman Richard Boucher, when Assistant Secretary Kelly and his delegationadvised the North Koreans that ‘we had recently acquired information that indi-cates that North Korea has a program to enrich uranium for nuclear weapons’,North Korean officials ‘acknowledged that they have such a program’.37


33 IAEA, ‘Statement to the Forty-fourth Regular Session of the IAEA General Conference2000 by IAEA Director General Dr. Mohamed ElBaradei’, 18 September 2000. For itspart, North Korea maintained that ‘three to four months would be enough forinspections’. Asahi Shinbun, 21 August 2002.

34 Office of the Press Secretary, White House, ‘Statement by the President’, 6 June 2001.35 The idea was later elaborated in the National Strategy to Combat Weapons of Mass

Destruction in December 2002. It says that: ‘Because deterrence may not succeed, andbecause of the potentially devastating consequences of WMD use against our forces andcivilian population, US military forces and appropriate civilian agencies must have thecapability to defend against WMD-armed adversaries, including in appropriate casesthrough preemptive measures’ (emphasis added). Ibid., 3.

36 White House, ‘President Delivers State of the Union Address’, 29 January 2002.37 US State Department, ‘Press Statement by Richard Boucher, Spokesman: North Korean

Nuclear Program’, 16 October 2002.


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In response to this revelation, not only the United States but also South Koreaand Japan denounced it as a ‘violation’ of relevant agreements to which NorthKorea is a party.38 In the light of the violations, the KEDO Executive Boarddecided on 14 November 2002 to suspend heavy oil deliveries to North Korea asof the December shipment.39 Moreover, the IAEA’s Board of Governors adopteda resolution (GOV/2002/60) on 29 November without a vote, which recognised thatthe programme to enrich uranium for nuclear weapons or any other covert nuclearactivities would constitute a violation of the DPRK’s international commitments,including its Safeguards Agreement with the IAEA, and urged Pyongyang to ‘giveup any nuclear weapons programme’.40

At least officially, however, the DPRK has not confirmed its reported acknowl-edgement. Instead, it issued a press release saying that: ‘[p]roviding no concreteevidence, the US special envoy asserted that we were violating the DPRK-USAgreed Framework by engaging in a programme to enrich uranium with a view tomanufacturing nuclear weapons’, and that ‘[w]e clearly told the US presidentialspecial envoy that we are entitled to have nuclear weapons and more powerfulweapons’.41 The DPRK also responded to the above moves by sending two lettersto the IAEA’s Director General in December:42 one expressing disappointmentabout the Agency’s unilateral and unfair approach; and the other conveying itsdecision to lift the freeze of its nuclear facilities as of 13 December in the light ofthe US suspension of the heavy oil supply pursuant to the Agreed Framework. Asa first step to proceed as announced, Pyongyang started to cut the seals and disablesurveillance cameras on 22 December, and then ordered the IAEA inspectors on27 December to leave the country (they in fact left North Korea on 31 December2002).

In the light of these developments, the IAEA’s Board of Governors adopted afurther resolution (GOV/2003/3) on 6 January 2003 by consensus, deploring ‘in thestrongest terms’ the DPRK’s unilateral acts to remove and impede the functioningof containment and surveillance equipment at its nuclear facilities, and calling forits urgent and full cooperation with the Agency.43 But it stopped short of submit-ting the issue to the UN Security Council.

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38 See, e.g., ‘Joint US-Japan-ROK Trilateral Statement’, Los Cabos, Mexico, 26 October2002.

39 KEDO, ‘KEDO Executive Board Meeting Concludes’, 14 November 2002.40 GOV/2002/60, 29 November 2002.41 ‘North Korean Spokesman Issues Press Statement on Nuclear Issue’, BBC Worldwide

Monitoring, 25 October 2002. See also Kenneth Boutin, ‘North Korean Crisis: Fallout forVerification’ (Jan–Feb 2003) 106 Trust & Verify 1.

42 One letter was received on 4 December from the DPRK’s Foreign Minister, Paek NamSun, and the other on 12 December from the Director General of the GeneralDepartment of Atomic Energy of the DPRK, Ri Je Son. IAEA, ‘Fact Sheet on DPRKNuclear Safeguards’. Media Advisory 2002/52.

43 GOV/2003/3, 6 January 2003.


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North Korea responded on 10 January, declaring the resolution ‘unjust’. At thesame time, it announced that it was withdrawing from the NPT. In a letter of 10January 2003, to the President of the Security Council, the DPRK informed thelatter that it decided to revoke the ‘suspension’ on the effectuation of its withdrawalfrom the NPT and accordingly ‘the DPRK’s withdrawal from the NPT will be effec-tuated fully from 11 January 2003’. The ‘Statement of the Government of theDemocratic People’s Republic of Korea’ (hereinafter cited as the ‘Statement of theDPRK Government’),44 which was issued on the same day and a copy of which wasenclosed with the DPRK’s letter to the President of the Security Council, explainedthe background and reasons behind the decision. It was also made clear in theStatement that ‘the DPRK withdrawing from the NPT is totally free from thebinding force of the safeguards accord with the IAEA under its article 3 [provid-ing for cooperation between the DPRK and the IAEA]’.45 Pyongyang furtherannounced later in January that it would reactivate the reactors to secure electric-ity supply that had been lacking due to the stop of heavy oil delivery from theKEDO.46

Faced with these announcements, the IAEA Board of Governors finallydecided in its resolution of 12 February 2003 to report to the UN Security Councilthe DPRK’s non-compliance and the Agency’s inability to verify non-diversion ofnuclear material.47 The resolution was adopted by an overwhelming majority withno objection with only Russia and Cuba abstaining.48 The Security Council has notacted on this IAEA submission yet in the form of a resolution or a PresidentialStatement at the time of writing.

In the meantime, according to the Korean Central News Agency (KCNA), aSpokesman of the North Korean Foreign Ministry told the KCNA on 5 February2003 that the DPRK restarted and normalized the operation of its nuclear facilityto generate electricity. On 26 February 2003, the US government ascertained therestart of the 5 MW graphite reactor in Yongbyon that had been frozen under theAgreed Framework.49


44 ‘Statement of the Government of the Democratic People’s Republic of Korea dated 10January 2003’, in UN doc. S/2003/91, 3–4.

45 This part of the ‘Statement of the DPRK Government’ is slightly different between itsKorean Central News Agency version (‘Statement of DPRK Government on itswithdrawal from NPT’, Korean News, 11 January 2003) and that of the Security Councildocument (UN doc. S/2003/91, 3–4). The former is adopted in the text because it is morelogical.

46 Asahi Shinbun, 12 January 2003. 47 IAEA, ‘IAEA Board of Governors Adopts Resolution on Safeguards in North Korea’,

Media Advisory 2003/48, 12 February 2003. 48 Yomiuri Shinbun, 13 February 2003.49 Asahi Shinbun, 5 February 2003; Yomiuri Shinbun (evening edition), 27 February 2003.


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3 NORTH KOREAN STATUS UNDER THE NPT

3.1 The Withdrawal Clause of the NPT and Four Possible Interpretations ofNorth Korea’s Status under the NPT

With the above facts established, we now consider the status of North Korea underthe NPT. Perhaps, the following three facts are most relevant here:

(1) North Korea announced its decision to withdraw from the NPT on 12March 1993 (first announcement);

(2) It suspended the announced withdrawal from the NPT in theUS–DPRK Joint Statement on 11 June 1993, one day prior to itseffectuation; and

(3) It informed the Security Council on 10 January 2003 that it revoked thesuspension of the effectuation of the withdrawal (second announcement).

The withdrawal clause of the NPT, article 10, paragraph 1, stipulates as follows:

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

Thus, we can identify three procedural requirements that a state party must satisfybefore withdrawing from the NPT: (1) a statement of extraordinary events thathave jeopardised its supreme interests must be included in its notice of withdrawal;(2) the notice must be given to all other Parties to the Treaty and the UN SecurityCouncil; and (3) a period of three months must elapse before the noticed with-drawal takes effect.

Based on the relevant facts and in the light of the above provisions of the NPT,one can think of at least the following four interpretations on the North Koreanstatus under the NPT:

(a) North Korea withdrew from the NPT as of 12 June 1993 (three monthsafter the first announcement);

(b) It withdrew from the NPT as of 11 January 2003 (one day after thesecond announcement);

(c) It withdrew from the NPT as of 10 April 2003 (three months after thesecond announcement); and

(d) North Korea still remains party to the NPT.

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3.2 North Korean Argument and the IAEA’s Response

North Korea itself interprets the situation as follows: since it decided to ‘unilater-ally suspend’ its 12 March 1993 notice of withdrawal ‘as long as it considers neces-sary’ in the US-DPRK Joint Statement on 11 June 1993, one day before itseffectuation, and since its 10 January 2003 announcement revoked that ‘suspen-sion’, the withdrawal fully took effect on the following day of the 2003 announce-ment, i.e., on 11 January 2003 (interpretation (b)).50

The reason for lifting the moratorium in 2003 was explained in the ‘Statementof the DPRK Government’. It said that ‘now that the United States has unilater-ally abandoned its commitments to stop nuclear threats and renounce hostilitytowards the DPRK in line with the [11 June 1993] statement’, it declared an ‘auto-matic and immediate effectuation of its withdrawal from the NPT’.51 HerePyongyang was referring to the fact that in the US-DPRK Joint Statement of June1993 both sides agreed, among other things, to the principle of ‘assurances againstthe threat and use of force, including nuclear weapons’.52 Thus, an attempt wasmade to establish a connection between the June 1993 Joint Statement (on thesuspension of the withdrawal) and the January 2003 announcement (on the liftingof the suspension). Such an explanation was also made by the North KoreanPermanent Representative to the United Nations, Pak Gil Yon, at the pressconference on 10 January 2003.53

The IAEA challenged such explanations by the DPRK and argued that ‘theNPT contains no provision for the “suspension” of a notice of withdrawal from theNPT’. It then made reference to the fact that ‘Article 68 of the Vienna Conventionon the Law of Treaties provides only for the revocation of an instrument or notifi-cation of withdrawal from a treaty’, and maintained that ‘[t]hus, it may beconcluded that the 11 June 1993 “moratorium on the effectuation of its withdrawalfrom the NPT” by the DPRK should be treated as a revocation of its notice of with-drawal’.54 The IAEA argument stopped short of indicating whether North Korea


50 See ‘Letter dated 10 January 2003 from the Minister for Foreign Affairs of the DemocraticPeople’s Republic of Korea addressed to the President of the Security Council’, in UNdoc. S/2003/91, 2.

51 ‘Statement of the Government of the Democratic People’s Republic of Korea dated 10January 2003’ in ibid., 4.

52 ‘Joint Statement of the Democratic People’s Republic of Korea and the United States ofAmerica’, New York, 11 June 1993.

53 United Nations, ‘Press Briefing: Press Conference by Democratic People’s Republic ofKorea’, 10 January 2003.

54 GOV/2003/4, 22 January 2003, para. 7. Due note should be taken of the fact that theIAEA’s interpretation on the North Korean status under the NPT is contained in the‘Report by the Director General [of the IAEA]’. It was not formally approved by anyorgans of the IAEA and, as such, does not necessarily represent the views of its memberStates or Board of Governors. The Board simply said in its resolution of 12 February 2003,that it has ‘considered the report of the Director General (GOV/2003/4)’. Nonetheless, itcould be assumed from the same resolution that the Board members overwhelminglyagreed to the conclusion that the North Korean argument of immediate withdrawal wasnot acceptable, because it confirms that the Agency’s Safeguards Agreement with theDPRK pursuant to the NPT ‘remains binding and in force’.


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would leave the NPT three months after the second announcement. This argumentof the IAEA55 would raise a couple of questions relating, respectively, to the acqui-escence of the other parties and to the intent of the announcing party.

First, it is true that there is no system of suspension of withdrawal provided forin the NPT. However, it may be permissible, generally speaking, to agree amongthe parties to a treaty, explicitly or tacitly, on a special treatment of a special caseof political importance even in the absence of specific provisions in the treaty tothat effect, unless that would run counter to the object and purpose of the treatyor its relevant provisions.

Perhaps, what comes to one’s mind as an example of such deviation from treatyprovisions would be the case of the Syrian readmission to the United Nations thatwas effected in a way variant from UN Charter provisions. When Syria, after havingestablished the United Arab Republic (UAR) with Egypt in 1958, decided tobecome an independent state again in 1961, the UAR (Egypt) kept its seat at theUnited Nations, leaving the question of the readmission of Syria. In that case, thereadmission, which should have occurred in accordance with the Charter procedurefor admission, took place through a simplified procedure, with no intervention ofthe Security Council and no formal decision of the General Assembly. Whathappened was that the President of the General Assembly simply asked whetherthere were any objections to restoring the seat of the country, and after taking noteof the unanimous approval, he invited Syria to take its seat again. What enabledthis to happen was the ‘ability of acquiescence of States to remedy even the mostobvious illegal acts of the organs’ as Professor Conforti points out.56

Likewise, it could be said that what happened in 1993 regarding the NorthKorean suspension of withdrawal from the NPT was the acquiescence of the otherparties to the North Korean argument of unilateral suspension of withdrawal inthat particular case. Of course, there are objections to the North Korean argumentat present, but there were apparently no such objections at the time of theannouncement of suspension, for the obvious reason that an objection virtuallymeant the support for the withdrawal. Indeed the President of the Security Councileven issued a consensus statement, which ‘welcome[d] the joint statement of theDPRK and the United States of 11 June 1993, which included the DPRK’s decisionto suspend the effectuation of its withdrawal from the [NPT]’.57

Such recourse to the doctrine of acquiescence should not be sustained if theresult would run counter to the object and purpose of the NPT or its relevantprovisions. But that does not seem to have been the case. On the contrary, it wouldhave been in nobody’s interest to refuse the DPRK’s statement on the suspensionof withdrawal, because the refusal would have meant that a Party to the NPTsuspected of developing nuclear weapons was leaving the Treaty. As such, the

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55 Sweden put forward a similar argument by saying that the States Parties to the NPT donot recognise that it should be possible to ‘save’ a portion of the 90-day withdrawal periodfrom one occasion to another, and accordingly North Korea is still a party to the NPT.CD/PV.918, 30 January 2003, 30. See also note 96 below.

56 Benedetto Conforti, The Law and Practice of the United Nations (2000), 38, 45. 57 S/PRST/1994/13, 31 March 1994. Emphasis added.


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acquiescence in 1993 (the North Korean case) arguably takes on more legitimacythan the one in 1961 (the Syrian case). It has been said that the withdrawal clauseof the NPT was formulated so that parties to the Treaty could not withdraw fromit easily and quickly.58 Thus, suspending the effectuation of withdrawal would notcontradict the object and purpose of that clause, either.

Perhaps, it may even be argued that the other Parties to the NPT, or moreprecisely those who were Parties at that time, would now be estopped by theiracquiescence59 in 1993 from objecting to the North Korean argument of ‘immedi-ate effectuation’ of its withdrawal in 2003.

The second point that could be raised regarding the IAEA refutation of theNorth Korean logic is related to the IAEA argument that the DPRK’s ‘suspension’of withdrawal should be treated as its ‘revocation’. As a unilateral declaration, themeaning of the North Korean announcement should be interpreted according toits terms and the intent of its author as well as the circumstances of its making,60

none of which seems to support the IAEA argument.61

Moreover, the IAEA might previously have accepted the North Koreanargument for the suspension of withdrawal, albeit reluctantly. According to Pro-fessor Sigal, ‘[t]he IAEA preferred to have North Korea abandon the Nonprolif-eration Treaty altogether than remain partially in and partially out’.62 This was hisanalysis of a statement made by Mr. Pellaud, the IAEA’s Deputy Director General,who had reportedly said in July 1994 that the DPRK’s departure from the Treatywould at least clarify its non-compliance status. Thus, the IAEA seems to have seenthe DPRK’s status under the NPT as somewhat half in and half out as a result ofits suspension of withdrawal from the Treaty.

In contrast with this, North Korea seems to have had every reason to believethat it had been given a ‘unique status’ under the NPT.63 Although the decision ofsuspension itself was made ‘unilaterally’ by North Korea, that decision wasincluded in a ‘Joint Statement’ with the United States, implying the latter’s tacitendorsement of the decision in general terms. The Presidential Statement from theSecurity Council mentioned above also seems to have endorsed the suspension bywelcoming the Joint Statement. The Agreed Framework subsequently signedbetween North Korea and the United States provided a further basis leadingPyongyang to believe that it was in a unique position vis-à-vis the NPT, because it


58 See 3.3 below.59 For the relationship between estoppel and acquiescence, see D.W. Bowett, ‘Estoppel

before International Tribunals and its Relation to Acquiescence’ (1957) 33 BYBIL 197;I.C. MacGibbon, ‘The Scope of Acquiescence in International Law’ (1954) 31 BYBIL 147.

60 Regarding the interpretation of a unilateral declaration in general, see GeraldFitzmaurice, The Law and Procedure of the International Court of Justice (vol. I, 1986),363–6.

61 A similar argument for revocation might have been more tenable if it had been based onparagraph IV.1 of the Agreed Framework, because it states that ‘The DPRK will remaina party to the [NPT]’. But here too, Pyongyang’s intention was clearly not to that effect.

62 Sigal, op.cit., 97.63 See CD/PV.918, 31 (DPRK).


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granted the DPRK a moratorium on the full implementation of its SafeguardsAgreement with the IAEA as noted earlier.

3.3 Other Possible Interpretations

Despite all that has been said, a hard fact remains that the North Korean argumentshave not been supported by other states, at least openly. With this fact taken asgiven, one can think of two other possible interpretations of the North Koreandeclaration of ‘suspension’ of its withdrawal from the NPT.

One would be that since there is no system of suspension of withdrawalprovided for in the NPT, an announcement to that effect would have no legal effectat all. One logical consequence of this interpretation should be that Pyongyangwithdrew from the NPT on 12 June 1993 (interpretation (a) above). For if theannounced suspension had no legal effect, then the withdrawal notice of 12 March1993 must have taken effect three months later in accordance with the NPT.

However, this does not conform with subsequent events: Pyongyang’s member-ship in the NPT was confirmed by various international documents and state prac-tices after that date. For instance, the 1994 Agreed Framework expressly providedthat ‘[t]he DPRK will remain a party to the [NPT]’. The North Korean member-ship in the NPT was further confirmed on the occasion of the NPT Review andExtension Conference in 1995. Pyongyang sent its delegation to that Conferenceand there was no objection raised regarding its participation. To the contrary, theDPRK was listed in the Final Report of the Credentials Committee to theConference as one of the participating ‘States parties’.64 Thus, interpretation (a) isnot supported by any state, including North Korea itself, although it is logicallypossible.

The other possible interpretation of the North Korean ‘suspension’ of with-drawal is the one put forward by the IAEA: namely, that the North Koreandecision of ‘suspension’ of its withdrawal from the NPT should be treated as thatof ‘revocation’ of the withdrawal – an interpretation not really persuasive asdiscussed above. But if one takes the IAEA interpretation as given, there are stilltwo further possible interpretations as to the North Korean status under the NPT,depending on how one interprets and treats the January 2003 declaration of NorthKorea lifting the moratorium on the effectuation of its withdrawal from the NPT.

One possible interpretation would be to treat the 2003 declaration as a newnotice of the North Korean withdrawal from the NPT. In this case, it would followthat Pyongyang withdrew from the NPT as of 10 April 2003, three months after thenew announcement of withdrawal (interpretation (c) above). The other possibleinterpretation would be that despite the renewed announcement, North Korea stillremains a party to the NPT even after 10 April 2003, because the new announce-ment did not meet all the requirements for a valid notice of withdrawal under the

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64 NPT/CONF.1995/CC/1, 10 May 1995, in NPT/CONF.1995/32 (Part II), New York, 1995,413–15.


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NPT (interpretation (d) above). There could be several arguments in support ofthis last interpretation and some of them have in fact been put forward by somestates, including Japan and the United Kingdom.65

Recalling the withdrawal clause of the NPT, it provides for two major require-ments to be satisfied by the withdrawing party in addition to the timeline of threemonths. They are: a statement of the extraordinary events the withdrawing partyregards as having jeopardized its supreme interests and the notification of theintended withdrawal to all other parties to the Treaty and the UN Security Council.Both of these requirements could possibly be considered as not being fulfilled bythe North Korean announcement of January 2003.

First, the 2003 announcement was, according to North Korea, purported to liftthe moratorium it had placed in June 1993 regarding its withdrawal from the NPT.As the North Korean did not intend to make a fresh declaration of withdrawal in2003, it may not necessarily contain ‘a statement of the extraordinary events’ thatwas currently existing at the time of the 2003 declaration of withdrawal. Thus, Japanhas reportedly cast doubt about North Korean satisfaction of this aspect of thewithdrawal procedure by maintaining that there is no statement of extraordinaryevents that North Korea regards as having jeopardised its supreme interests in its2003 notice to Japan.66

Second, in terms of the procedure of giving notice to ‘all other Parties to theTreaty’ and to the UN Security Council, several states have reportedly raised thatpoint.67 According to them, the North Korean announcement of withdrawal in 2003did not reach ‘all other Parties to the Treaty’. In fact, Romania has sometimes beenmentioned as one of those Parties to the NPT that have not received the NorthKorean notice in 2003.

If one attaches great importance to one or both of these aspects of the with-drawal procedure, it would logically follow that the North Korean notice of 2003did not meet the requirements under the withdrawal clause and could never resultin the DPRK’s departure from the NPT.

However, there could be a counter-argument to such a strict application of thewithdrawal clause. Under article 10 of the NPT, each Party has the ‘right towithdraw’ from the Treaty in exercising its ‘national sovereignty’. In that sense, thefact that some of the other parties to the Treaty did not receive the notice of with-drawal or that ‘the extraordinary events’ were not fully spelled out in the notice,should not be treated as something that would completely invalidate a party’snotice of withdrawal. China reportedly stands along this line, stating that ‘with-drawal [from the Treaty] is a matter of national sovereignty’.68 As ProfessorFrederic Kirgis argues in the context of the three-month notice requirement,‘[n]oncompliance with the notice requirement does not necessarily mean that the


65 For Japan, see below; for the United Kingdom, letter from Simon N. Brown, PoliticalSection, British Embassy in Tokyo, 7 May 2003.

66 Yomiuri Shinbun, 11 April 2003.67 Yomiuri Shinbun (evening edition), 26 April 2003.68 Ibid.


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withdrawal from the NPT is invalid’.69 In other words, the notice requirementsshould not be treated as conditions to be met for a withdrawal notice to be valid,but rather as procedural obligations a violation of which would only give rise tosome form of reparation, though in theory.70

This is not to say that procedural requirements are all immaterial and can bedismissed; in fact some of them are really critical. Whether a particular proceduralrequirement is critical or not is perhaps dependent on its purposes. It seems thatone of the purposes of requiring the withdrawing party to notify the withdrawal ‘toall other Parties to the Treaty’ is to inform the latter of that important decision andto give them the opportunities to persuade the withdrawing party to reconsider thedecision.71 If so, the fact that a handful of parties to the Treaty have not receivedthe notice should not be regarded as fatal. It could also be considered as remediedby the North Korean notice to the Security Council and the latter’s circulation ofit to other UN member states.72 As the International Court of Justice held in theCase concerning Application of the Genocide Convention, a procedural defect thatcould easily be remedied ‘matters little’.73

There is arguably a parallel procedural requirement provided for in article 51of the UN Charter regarding the right of self-defence. And the requirement toreport to the Security Council the measures taken in the exercise of the right ofself-defence is usually not respected by states exercising that right.74 Would an actof self-defence cease to be as such if the measures taken were not reported to theSecurity Council as required by article 51 of the Charter? Or is it just a matter ofprocedural non-compliance of the obligation that would not deprive the act of thenature of self-defence? Similar arguments based on the principle of de minimis noncurat praetor or de minimis non curat lex seem to apply here, too.

In addition, the argument that failure to notice all other parties to the Treatywould invalidate the notice itself might be seen as somewhat opportunistic andarbitrary in the particular context of North Korea. In fact, the same argument ofprocedural nature could have been put forward when Pyongyang declared its inten-tion to withdraw from the NPT for the first time in 1993. For it was reported thatnot all members of the NPT had been notified at that time.75 But no states appear

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69 Frederic L. Kirgis, ‘North Korea’s Withdrawal from the Nuclear Nonproliferation Treaty’,ASIL Insights, January 2003.

70 Ibid.71 For the drafting history of article 10 of the NPT with comments, see Mohamed I. Shaker,

The Nuclear Non-Proliferation Treaty: Origin and Implementation 1959–1979 (vol. II,1980), 883–99.

72 See UN doc. S/2003/91.73 Case concerning Application of the Convention on the Prevention and Punishment of the

Crime of Genocide (Preliminary Objections), ICJ Rep. 1996, 612, para.24. See also Appealrelating to the Jurisdiction of the ICAO Council, ICJ Rep. 1972, 69–70, para.45.

74 As Professor Jean Combacau points out, the obligation to report the measures taken tothe Security Council is rarely complied with. Jean Combacau, ‘The Exception of Self-Defence in UN Practice’, in A. Cassese (ed.), The Current Legal Regulation of the Use ofForce (1986), 14–16.

75 Lockwood and Wolfsthal, op.cit., 245.


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to have raised the point as far as the author is aware. And this assumption seemsmost plausible in the light of the US-DPRK Joint Statement of June 1993, in whichNorth Korea decided to suspend the effectuation of its withdrawal from the NPT.If some parties to the Treaty had raised a point of procedural anomaly that couldinvalidate the North Korean withdrawal notice, and if that was taken as a legiti-mate argument, then that itself must have been seen as enough to retain the DPRKin the NPT regime and have made it unnecessary to prescribe on the ‘suspension’of the withdrawal in the Joint Statement. Thus, the fact that the North Koreansuspension of withdrawal was included in the Joint Statement implies that its earliernotice of withdrawal was considered as valid despite the fact that not all had beenduly notified.

With regard to the requirement to include ‘a statement of the extraordinaryevents’ in the withdrawal notice, the purpose and significance of such a statementwas explained during the drafting of the NPT that since withdrawal would be a stepof vital importance, other parties would have a strong and legitimate interest inknowing why such action was being taken.76

There are two points to be mentioned in this regard. One is that although theNorth Korean letter to the President of the Security Council dated 10 January 2003itself did not necessarily spell out the events that led to the decision to announceits withdrawal from the NPT, the ‘Statement of the DPRK Government,’ a copy ofwhich was enclosed with the letter, explained in detail not only the logic of ‘auto-matic and immediate effectuation’ of the withdrawal but also the situation that ledto the decision. It began by saying that: ‘[a] dangerous situation where our nation’ssovereignty and our State’s security are being seriously violated is prevailing on theKorean peninsula due to the vicious, hostile policy of the United States of Americatowards the Democratic People’s Republic of Korea’. It specifically referred to thealleged fact that the IAEA termed North Korea ‘a criminal’ in its resolutions aswell as the fact that the United States listed the DPRK as part of an ‘axis of evil’and, according to Pyongyang, singled it out as a target of pre-emptive nuclearattack.77

The second and more important point is that the ultimate authority to deter-mine whether there exists ‘extraordinary events’ that would justify the withdrawalof a party from the NPT lies with the withdrawing party itself, though customaryinternational law arguably imposes a good faith requirement on that party. Thisinterpretation of the NPT withdrawal clause seems to have received unanimousagreement among writers.78

Of course, it is legally tenable and politically possible that the Security Councilwould respond to the withdrawal notice by adopting a resolution deciding to nullifyit under chapter VII of the UN Charter. But one could at least point out that itwould not be usual for the Security Council to exercise its power to negate the legal


76 Shaker, op.cit., 897.77 UN doc. S/2003/91, 3–4.78 See, e.g., Nicolas Sims, ‘Withdrawal Clauses in Disarmament Treaties: A Questionable

Logic?’ (Dec. 1999) 42 Disarmament Diplomacy 16; Kirgis, op.cit.; Shaker, op.cit., 898.


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effect of a withdrawal announcement on the ground that the stated reasons are notsufficient to justify the withdrawal.

In this connection, it is worth mentioning that the three depositary governmentsof the NPT – the US, UK and Russia – issued a statement on 1 April 1993 regard-ing the North Korean announcement of withdrawal in that year. It said that: ‘Wequestion whether the DPRK’s stated reasons for withdrawing from the Treatyconstitute extraordinary events relating to the subject-matter of the Treaty’.79 Itmust be pointed out, however, that contrary to the possible impression that thisstatement may convey, the depositary governments are not legally entitled toquestion the withdrawing party’s reasons for withdrawal, simply because that is notprovided for in the NPT.80 Thus, it could ultimately and daringly be said that if thewithdrawing party considers something to be an ‘extraordinary event,’ so it actuallyis in legal terms, barring an exceptional case of Security Council intervention.

In summing up, if one thinks that the questions raised regarding the proceduralrequirements under article 10 would not prevent North Korea from withdrawingfrom the NPT, the DPRK would have actually withdrawn from the Treaty on 10April 2003. But if not, it would follow that Pyongyang still remains a party to theNPT. Clearly, the former interpretation is more persuasive than the latter as shownabove.

4 NORTH KOREA’S OBLIGATION UNDER THE IAEASAFEGUARDS AGREEMENT

North Korean membership in the NPT is closely linked to its obligations under theSafeguards Agreement. The Safeguards Agreement between North Korea and theIAEA clearly stipulates that it ‘shall remain in force as long as the DemocraticPeople’s Republic of Korea is party to the [NPT]’ (art. 26).81 This means that aslong as North Korea remains party to the NPT, the Safeguards Agreement mustapply to the DPRK in its entirety as the IAEA has been arguing consistently.However, things are not so simple as they argue, due particularly to the existenceof the Agreed Framework between the United States and North Korea and otherrelevant agreements.

The Agreed Framework provides on the IAEA safeguards in three different

350 Masahiko Asada

79 UN doc. S/25515, 2 April 1993, 2.80 In this connection, the observations made by the United Kingdom and the United States

regarding ‘General Comment 24’ adopted by the Human Rights Committee meritparticular reference. In responding to the Committee’s General Comment to the effectthat the Committee should determine whether a specific reservation is compatible withthe object and purpose of the Covenant, they argued that the Committee would not havesuch power as is not provided for in the Covenant. See UN doc. A/50/40, 3 October 1995,129 (General Comment), 131–132 (US), 138, para.12 (UK).

81 INFCIRC/403, May 1992, reproduced in UN doc. A/48/133-S/25556, 12 April 1993, Annex2, 25.


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ways.82 One is the general statement that the DPRK ‘will remain a party to the[NPT]’ and ‘will allow implementation of its safeguards agreement under theTreaty’. Secondly, with regard to the graphite reactors and related facilities frozenunder the Agreed Framework, the IAEA will be allowed to ‘monitor this freeze’,with the DPRK’s full cooperation to the Agency for this purpose, as from the dateof the Agreed Framework. And thirdly, with respect to the ‘facilities not subject tothe freeze,’ ad hoc and routine inspections will resume under the Safeguards Agree-ment ‘upon conclusion of the supply contract’,83 and pending conclusion of thesupply contract, inspection required for the continuity of safeguards will continueat those facilities.

Thus, the DPRK was not required by the Agreed Framework to accept thewhole system of safeguards under its agreement with the IAEA. On the contrary,as the Agreed Framework itself clearly provides, the DPRK was required to ‘comeinto full compliance’ with the IAEA Safeguards Agreement only ‘[w]hen a signifi-cant portion of the LWR project is completed’.84

Apparently, the arrangement introduced by the Agreed Framework was not inconformity with the DPRK’s obligations under its Safeguards Agreement with theIAEA. That is partly why the IAEA’s Board of Governors and GeneralConference resolutions have repeatedly expressed their deep concern over theDPRK’s ‘continuing non-compliance’ with the Safeguards Agreement and reiter-ated their calls to the DPRK to ‘comply fully and promptly’ with it.85

At the same time, the IAEA had conducted monitoring of the freeze of thegraphite reactors and related facilities as provided for in the Agreed Framework.This might be seen as if the IAEA had tacitly endorsed the arrangement made bythe Agreed Framework so that it had no longer been in a position to call to theDPRK to comply fully with the Safeguards Agreement.

However, this does not seem to be the case. As the IAEA explains, its moni-toring of the freeze was not based on the provisions of the Agreed Frameworkdirectly; instead, it was based on the request of the UN Security Council, as someof the IAEA resolutions explicitly refer to.86 More specifically, the IAEA’s moni-toring activities at specified facilities in the DPRK had been based on the Presi-dential Statement of the UN Security Council made on 4 November 1994. In thatStatement, the Security Council ‘request[ed] the IAEA to take all steps it may


82 Agreed Framework, paras IV.1, I.3, and IV.2, respectively.83 The ‘supply contract’ was concluded in December 1995 in the form of the Supply

Agreement between the DPRK and the KEDO. See UN doc. S/2003/91, 8.84 Agreed Framework, para. IV.3.85 For some of the recent examples, see, e.g., GC(44)/RES/26, September 2000, para. 4;

GC(45)/RES/16, September 2001, paras 4, 5; GC(46)/RES/14, September 2002, paras 4, 5;GOV/2002/60, 29 November 2002, para. 1; GOV/2003/3, 6 January 2003, para. 1.

86 For instance, GC(46)/RES/14 of September 2002 commends the Secretariat for itscontinuous efforts to monitor the freeze of specified facilities in the DPRK ‘as requestedby the United Nations Security Council’ (para. 2).


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deem necessary as a consequence of the Agreed Framework to monitor the freeze’,after receiving an oral report from the IAEA’s Director General apparently to theeffect that the said monitoring activities are within the scope of the IAEA-DPRKSafeguards Agreement.87 Thus, for the IAEA the monitoring activities were stepshaving their direct basis in the Council request and having been taken within theframework of the Safeguards Agreement with the DPRK. As such, the IAEAmonitoring activities in North Korea per se did not entail any particular elementsof its endorsement of the special arrangement introduced by the Agreed Frame-work.

A second question that may be posed with regard to the IAEA safeguardsactivities in the DPRK is: whether such a political document as the Agreed Frame-work could change the obligations under such a legal instrument as the SafeguardsAgreement, or whether North Korea has been in non-compliance with the IAEASafeguards Agreement for a decade, as the IAEA claims, even if it fully complieswith the provisions of the Agreed Framework.

Legally, there is no doubt that the latter is the case. But then, what did theAgreed Framework mean at all? Did the United States make an arrangement withthe DPRK contrary to the latter’s legal obligations under the Safeguards Agree-ment, thus having induced the latter to breach international law? If the AgreedFramework is a mere political instrument and cannot change or terminate any legalobligations that the DPRK has assumed elsewhere, then did it have no legal impli-cations whatsoever? Perhaps the only possible legal implication it may have wouldbe that as far as the United States is concerned, it could not invoke, as a memberof the IAEA, the legal responsibility of the DPRK resulting from its non-compliance with the Safeguards Agreement as a consequence of its full and faithfulcompliance with the Agreed Framework.

However, the above explanation based essentially on the legal-politicaldichotomy could become unconvincing when one recalls the fact that some of theprovisions of the Agreed Framework have been incorporated in legal documents,such as the KEDO Agreement and the Supply Agreement. Indeed, the latterAgreement has incorporated almost all provisions of the Agreed Framework thatare related to the DPRK’s safeguards undertaking as a mutual condition for theprovision of the LWR project; and it clearly states that it ‘shall constitute an inter-national agreement between the KEDO and the DPRK, and shall be binding onboth sides under international law’.88 Thus, it could be said that there are two legalregimes concerning the DPRK’s safeguards obligations.

Important in this regard is the fact that the KEDO is not a closed organisationbut an organization open to states or international organizations that support itspurpose and offer assistance.89 It started functioning in March 1995 with the threestates of the United States, South Korea and Japan as original members, but now

352 Masahiko Asada

87 S/PRST/1994/64, 4 November 1994.88 Supply Agreement, art. 3, para. 1, Annex III and art. 18, para. 1.89 KEDO Agreement, art. 5 (b).


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its membership has grown to be as many as 12 states and one international organis-ation, i.e., the European Union having a membership of 15 states. Thus the legalauthority of the special safeguards regime for the DPRK rooted in the AgreedFramework has gained a relative weight as the membership of the KEDO rises.And to change the scheme provided for in the Supply Agreement, a consensus or,if it is not achievable, a majority vote of the Executive Board members (US, Japan,South Korea, and the EU) is needed for the KEDO side alone.90

Notwithstanding such a development, it could still be argued that there isnothing wrong for the IAEA to express concern over the continuing non-compli-ance of the DPRK with the IAEA Safeguards Agreement, since the Agency is aparty to the Safeguards Agreement, but a third party in relation to the AgreedFramework and the KEDO-related agreements after all. Beyond such IAEAperspectives, however, the general picture remains blurred, as would often be thecase with the application of successive treaties relating to the same subject-matter.91

Suppose that North Korea is definitely out of the NPT, it no longer assumes thefull scope safeguards obligations under the NPT. And the picture would becomeclear to that extent. But there may arise equally or more difficult questions, includ-ing the validity of the KEDO Agreement and other KEDO-related agreements thatmay be questioned based on the doctrine of material breach or rebus sic stantibus.

5 CONCLUSIONS

The present article examined legal aspects of the nuclear issues that have beenraised with regard to North Korea for more than ten years. As a result, it hasbecome clear that they are full of uncertainties and ambiguities. Such uncertaintiesand ambiguities have created particularly serious problems with regard to theNorth Korean status under the NPT.

Recently, there was a rare opportunity in which nearly all the complicated legalquestions involved could have been resolved, i.e., the Preparatory Committee forthe 2005 NPT Review Conference held from 28 April to 9 May 2003 in Geneva.However, parties to the NPT decided on 25 April, just before the opening of theCommittee, not to draw any legal conclusion at the Committee on the question ofthe North Korean withdrawal from the Treaty.92 They further decided that thenameplate for the DPRK would not be put on the delegations desk in theconference room but placed under the administrative ‘custody’ of the Chairman of


90 KEDO Agreement, art. 6 (a) and (e). At the same time, it is also true that the LWR projectwould not complete without the US and the DPRK concluding an agreement concerningpeaceful uses of nuclear energy.

91 Ian Sinclair describes this question as ‘[a] particularly obscure aspect of the law oftreaties’. Ian Sinclair, The Vienna Convention on the Law of Treaties (2nd edn, 1984), 93.

92 Yomiuri Shinbun (evening edition), 26 April 2003.


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the Preparatory Committee.93 At the Committee meeting, the Chairman’s state-ment to this effect94 was taken note of.95

From an international legal perspective, there seems to be little question aboutremoving the whole uncertainties and ambiguities by all means for the sake of legalclarity. In fact, as mentioned earlier, the IAEA once hinted that it would evenprefer to see the DPRK completely out of the NPT rather than remaining partiallyin and partially out.

On the other hand, there have been strong counter-argument that it would notnecessarily be wise to clarify the legal situation regarding the North Korean statusunder the NPT. For instance, US State Department Spokesman Richard Boucheron 9 April 2003 said in a press briefing as follows: ‘[t]he [US] administration hasnot taken a position on whether North Korea’s withdrawal notification meets therequirements of Article 10 [of the NPT]. For the present, we see no need to try andreach agreement on North Korea’s legal status under the [NPT]. Debate on thislegal question could sidetrack ongoing multilateral consultations . . . It is import-ant to remain focused on the real strategic issue, . . . denuclearization of the penin-sula. . . . That’s not really a matter of a legal interpretation of the treaty’.96

The present author would not hesitate to agree to the thrust of what SpokesmanBoucher said, if he intended to confine his statement to a short-term objective. Inthe short-term, it would perhaps be more important to keep North Korea on thisside of the point of no return by whatever means, however strange it would be inlegal terms, than to definitely conclude that North Korea is now out of the NPTregime. The latter course of action might well lead North Korea to reach the pointof no return. And even if Pyongyang decides to return later, it might try to makeconditions for its re-accession to the Treaty. If so, legal considerations shouldperhaps give way for the moment to political considerations for an overall benefitof international peace and security in the region.

However, in the longer term, it is doubtful whether such an approach would

354 Masahiko Asada

93 Ibid. See also Rebecca Johnson, ‘Rogues and Rhetoric: The 2003 NPT PrepCom SlidesBackwards’ (June/July 2003), 71 Disarmament Diplomacy 6.

94 The Chairman of the second session of the Preparatory Committee, after reporting that theconsultations that he had carried out revealed ‘diverging views on the status of theDemocratic People’s Republic of Korea in the NPT’, stated as follows: ‘It is my convictionthat a debate on the issue would only serve to the detriment of the purpose of thePreparatory Committee, namely . . . . In light of the above, the Chair has the intention,under his own responsibility, not open a debate on this issue and to retain the nameplate ofthe said country temporarily, in his custody. The Chair has therefore asked the Secretariatto hold the nameplate in the conference room for the duration of the second session of thePreparatory Committee. This is in no way meant to prejudice the outcome of on-goingconsultations on the issue’. NPT/CONF.2005/PC.II/CRP.1, 7 May 2003, para. 6.

95 Ibid.96 US Department of State, ‘Transcript: State Department Noon Briefing, 9 April 2003 (Iraq,

Russia, North Korea, China), State Department Spokesman Richard Boucher briefed’, 9April 2003. According to Spokesman Boucher, the US position regarding the NorthKorean status under the NPT is that it ‘took a position that the immediate withdrawalannouncement was not effective’ but it has ‘not taken a position on whether the three-month withdrawal is legally operational or not’. Ibid.


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really serve the objective of arms control and disarmament, and ultimately theobjective of the maintenance of international peace and security. If a state were tobe allowed to be nebulous about whether it has assumed such important legal obli-gations as not to manufacture or otherwise acquire nuclear weapons under theNPT, that would not only undermine the NPT itself but might also affect other legalregimes prohibiting and regulating weapons and weapons systems.

What the international community is now doing is deliberately refraining fromclarifying North Korean status under the NPT. Although the case was submittedto the Security Council, it has taken no concrete measures so far. This has beensaid to be all for the sake of a peaceful and diplomatic solution of the problem.Such an exercise might prove successful this time. But it would surely leave impres-sions that the NPT might not work in a real contingency situation, and that it mightbe possible to leave the Treaty any time without strict sanctions imposed. Moregenerally, the North Korean case might adversely affect arms control and the dis-armament law system as a whole by setting a bad precedent.

6 POSTSCRIPT

Since mid-2003, the world has witnessed the worsening nuclear situation on theKorean Peninsula. Pyongyang claimed that it resumed and completed reprocessingof the spent fuel rods previously frozen at Yongbyon, and later publicly said thatthe resulting fissile material would be used to bolster its ‘nuclear deterrent force,’although there is no independent confirmation of North Korea’s claim. Withoutany positive development in actual terms, the KEDO Executive Board decided on21 November 2003 to suspend the LWR project in the DPRK for a period of oneyear, beginning 1 December 2003. The future of the project is to be decided by theBoard before the expiration of the suspension period.

In the meantime, there has been an endeavour going on to resolve the NorthKorean nuclear issue diplomatically through multilateral talks among the statesmost concerned. In April 2003, the first such talks were held in Beijing with theparticipation of North Korea, the United States and China. In August 2003, SouthKorea, Japan and Russia joined the process, making it six-party talks. During thesix-party talks in August, North Korea agreed to the eventual elimination of itsnuclear programmes if the United States were first willing to sign a bilateral ‘non-aggression treaty’ and meet various other conditions, including the provision ofsubstantial amounts of aid and normalisation of relations. The North Koreanproposal was unacceptable to the United States, which insisted on a multilateralresolution to the issue and refused to provide benefits for North Korea to abide byits previous international obligations. A hinted shift in the US policy was revealedin October 2003 when President Bush said that he would be willing to consider amultilateral written security guarantee in the context of North Korea’s complete,verifiable and irreversible elimination of its nuclear programme. Despite such adevelopment and despite the convening of the second round of six-party talks inFebruary 2004, there is no clear prospect for a final resolution to the issue.



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dprk (asada) in 9-3 jcsl (2004)

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