‘Peace and verifiable denuclearisation must remain the clear and shared goal. The road ahead will require cooperation, compromise and a common cause.’ These encouraging words have come from António Guterres, UN Secretary-General, after the first historic summit between Trump and Kim Jong Un in Singapore on 12 June 2018. Trump committed to provide security guarantees to North Korea and Kim Jong Un reaffirmed his commitment to complete denuclearisation of the Korean Peninsula.

Going back in time, North Korea and South Korea were engaged in a bloody war in the early 1950s.Though an armistice brought about a ceasefire to the Korean War in 1953, yet the conflict never officially ended as the parties did not sign a formal peace treaty.

To put an end to the menace of spread of nuclear arms, an international treaty, the Non-Proliferation Treaty (NPT) has been put into place. Its objective is to prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy, and to further the goal of achieving nuclear disarmament. North Korea ratified NPT in 1985 but later withdrew from the treaty in 2003.

It was the first state ever to withdraw from the treaty. In 1993 also, it had tried to withdraw from the treaty. IAEA had then found North Korea in non-compliance with its obligations under the IAEA-DPRK (official name of North Korea) safeguards agreement and it was also not able to verify that there had been no diversion of nuclear materials required to be safeguarded under the terms of the IAEA-DPRK safeguards agreement to nuclear weapons or other nuclear explosive devices.

The United Nations Security Council in its Resolution 825 (1993) urged against the withdrawal, recalling the Joint Declaration by North Korea and South Korea on the denuclearisation of the Korean Peninsula, which included establishment of a credible and effective bilateral inspection regime and a pledge not to possess nuclear reprocessing and uranium enrichment facilities.

But North Korea continued with its missile arsenal. After its withdrawal from NPT in 2003, it conducted a test of a nuclear weapon on 9 October 2006. UN Security Council Resolution 1718 (2006) observed that the test constituted a challenge to the NPT and to international efforts aimed at strengthening the global regime of non-proliferation of nuclear weapons, and the danger it posed to peace and stability in the region. It further observed that North Korea could not have the status of a nuclear-weapon state in accordance with the Treaty and deplored the announcement of withdrawal from the Treaty and North Korea’s pursuit of nuclear weapons. All Member States were restrained from direct or indirect supply, sale or transfer to North Korea of battle tanks, armoured combat vehicles, large calibre artillery systems, combat aircraft, attack helicopters, warships, missiles or any missile systems.
Post 2006 North Korea continued with its nuclear arsenal resulting in more sanctions through UN Security Council resolutions.

President George Bush’s 2002 State of the Union Address provides a glimpse of the earlier stand of the United States towards North Korea: “Our goal is to prevent regimes that sponsor terror from threatening America or our friends and allies with weapons of mass destruction. Some of these regimes have been pretty quiet since September 11, but we know their true nature. North Korea is a regime arming with missiles and weapons of mass destruction, while starving its citizens. States like these, and their terrorist allies, constitute an axis of evil, arming to threaten the peace of the world. By seeking weapons of mass destruction, these regimes pose a grave and growing danger. They could provide these arms to terrorists, giving them the means to match their hatred. They could attack our allies or attempt to blackmail the United States. In any of these cases, the price of indifference would be catastrophic.”

United States has steadily increased the sanctions against North Korea over the past several years. In 2016 in response to another nuclear test, the United States enacted the North Korea Sanctions and Policy Enhancement Act of 2016 which required the President to sanction entities found to have contributed to North Korea’s weapons of mass destruction program, arms trade and human rights abuses. It additionally imposed mandatory sanctions for entities that were involved in North Korea’s mineral or metal trade.

President Trump, in retaliation to another nuclear test, issued Executive Order 13810 in September 2017 which broadly expanded U.S. sanctions against North Korea. The executive order clearly declared that the provocative, destabilising, and repressive actions and policies of North Korea, including its ICBM launches and its nuclear test of 2017 have violated its obligations under numerous UNSCRs and contravened its commitments under the Joint Statement of the Six Party Talks and its commission of serious human rights abuses and its use of funds generated through international trade to support its nuclear and missile programmes and weapons proliferation, constituted a continuing threat to the national security, foreign policy, and economy of the United States, and a disturbance of the international relations of the United States.

The order authorised the blocking of any individual or entity by the Secretary of the Treasury, in consultation with the Secretary of State, determined to operate in the construction, energy, financial services, fishing, information technology, manufacturing, medical, mining and textiles fields. The Executive Order blocked all funds that were in the United States and that originated from, were destined for, or pass through a foreign bank account that had been determined by the Secretary of the Treasury to be owned or controlled by a North Korean person, or to have been used to transfer funds in which any North Korean person had an interest. It further required the blocking by U.S. persons of all property or interests in property of any individual or entity determined to be a North Korean person.

Till recently the United States had been contemplating the use of force (anticipatory self-defence) against North Korea. Though a controversial one, Article 51 of the UN Charter recognises a state’s right to use force in self-defence if an armed attack occurs. It specifies that nothing in the Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

The International Court of Justice in the Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA, 1986) had observed that the right of self-defence is also a pre-existing customary international law. The United States’ stand on self-defence can be found in the report on the legal and policy frameworks guiding the United States’ use of military force and related national security operations (December 2016) wherein it is observed that under the principle of jus ad bellum, a State may use force in the exercise of its inherent right of self- defence not only in response to armed attacks that have already occurred, but also in response to imminent attacks.

When considering whether an armed attack is imminent under the jus ad bellum principle for purposes of the initial use of force against another State or on its territory, the United States analyzes a variety of factors like the nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity; the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action.

Again, the report states that the absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent for purposes of the exercise of the right of self-defense, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent. More importantly the traditional conception of what constitutes an ‘imminent’ attack must be understood in light of modern-day capabilities, techniques, and technological innovations of terrorist organisations.

In September 2017 North Korea conducted its sixth nuclear test which led to further sanctions from the UN Security Council. These targeted the country’s oil imports and textile exports resulting in toughening of sanctions. UN has put sanctions against the proceeds of North Korea’s trade in sectoral goods including coal, iron, iron ore, lead, lead ore, textiles, seafood, gold, silver, rare earth minerals, and other prohibited metals, as well as the revenue generated from North Korean workers overseas. It has also directed all States to prohibit the direct or indirect supply, sale or transfer to North Korea, through their territories or by their nationals of crude oil.

The UN Security Council has further decided that North Korea cannot supply, sell or transfer, directly or indirectly, from its territory or by its national food and agricultural products, machinery, electrical equipment, earth and stone including magnesite and magnesia, wood, and vessels, and that all States have been prohibited from procuring the commodities and products from North Korea or their nationals.

United Nations has time and again condemned North Korea for pursuing nuclear weapons and ballistic missiles instead of the welfare of its people. It reasoned that while people in North Korea had great unmet needs, there was a great necessity of North Korea respecting and ensuring the welfare and inherent dignity of people. The UN has rightly noted that North Korea should stop diverting its scarce resources toward its development of nuclear weapons and ballistic missiles at the cost of its starving people.

As per the recent report of UN Office for the Coordination of Humanitarian Affairs chronic food insecurity, early childhood malnutrition and nutrition insecurity are widespread in North Korea. As per 2017 Global Hunger Index (GHI) North Korea has a score of 28.2, which is classified as serious. Around 10.3 million people, or roughly 41 per cent of the total population, are undernourished.

Under resolution 1718 (2006), persons or entities engaging in or providing support for North Korea’s prohibited programmes or by persons or entities acting on their behalf have been designated, including the family members of such persons, for the travel ban which has been expanded under resolution 2087 (2013) including the criteria of individuals and entities which have assisted the evasion of sanctions or in violating the earlier resolutions.

All States have been prohibited from providing work authorisations for North Korean nationals in their jurisdiction in connection with admission to their territories. They are required to freeze the assets, funds, and economic resources of the entities of the North Korean regime and Korean Workers’ Party. The assets include tangible, intangible, movable, immovable, actual or potential, which may be used to obtain funds, goods or services.
From the beginning of 2018, North Korea had softened its position.

In February 2018, South and North Korea marched together during the opening of the Olympic Games. In April 2018 Kim Jong-un held a historic summit meeting with President Moon Jae-in of South Korea. The unprecedented agreement between Trump and Kim can lead to substantial reduction of the deep and bitter hostility between United States and North Korea.

According to the declaration signed by both leaders and released after the meeting, United States of America and North Korea have rightly committed themselves to cooperate for the development of new U.S.–North Korea relations and for the promotion of peace, prosperity, and security of the Korean Peninsula and of the world. The leaders have undoubtedly heralded a new chapter in world peace.

The writers are Mumbai-based advocates and legal consultants.