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Nuclear Law and Diplomacy After Kim Jong-il

JURIST Columnist Edsel Tupaz of Tupaz & Associates says that because there are no effective international legal remedies to Japanese security concerns regarding North Korea, the Japanese must again pursue diplomatic avenues that may prove more successful after the death of Kim Jong-il...

In signature enigmatic fashion, North Korea shocked the world when its state-run media reported the death of its leader, Kim Jong-il, on December 17. Following the state funeral of his father, Kim Jong-un was formally appointed as Supreme Leader of the Democratic People's Republic of Korea (DPRK). The succession has cast doubts on the future trajectory of the North Korean regime, as well as regional security and balance of power dynamics in East Asia. Save for his uncle and aunt, Kim Jong-un's personality, politics and advisors are presently unknown or merely speculated, as is the future he envisions for North Korea. Thus, this murky power transition and ensuing uncertainty is reason enough for countries in the region to worry.

Japanese Prime Minister Yoshihiko Noda paid an official visit to China on December 25 and 26 to meet with Prime Minister Wen Jiabao to improve bilateral ties and discuss concerns that came to fore after Kim Jong-il's death. Undoubtedly, there were several things on Noda's mind. The stakes for Japan, which has had no current diplomatic relations with the DPRK, are especially high on the Korean peninsula. The relationship between the countries has been unstable since World War II and the Cold War, and the DPRK recently rattled nerves in Japan by conducting nuclear tests in 2006 and 2009, and sending ballistic missiles over Japanese territory to test its rocket technology. After the announcement of Kim Jong-il's death, Japanese officials ordered the country's self-defense forces and coast guard to step up surveillance in waters dividing Japan from the Korean peninsula, revealing a defensive shift in Japan's crisis-management. During the meeting in Beijing, Noda agreed with Chinese President Hu Jintao that their respective countries must continue to coordinate and strengthen ties to ensure regional security during North Korea's power transition.

It can be difficult, if not unwise, for Japan to take bold steps on the North Korean issue at this point. Considering the relative inexperience of the Noda administration in foreign diplomacy, as well as ongoing domestic concerns in Japan — such as the weaknesses and quick turnovers of prime ministers, and the continuing efforts to deal with the after-effects of last year's tsunami — dealing with North Korea and the repercussions of Kim Jong-un's succession, although important, might be forced to the background. Thus, it was an astute decision on Japan's part to engage China's help in this issue. China is, after all, North Korea's closest ally in Asia and has maintained diplomatic and trading relations with the country for decades — a decent position to convince or pressure North Korea to play nice.

Japanese officials' timely visit to Washington, DC, where Foreign Minister Koichiro Gemba consulted with US Secretary of State Hillary Clinton and produced a predictable united front on the North Korean issue, and to Beijing further signal Japan's increasingly active role in the efforts to resume the six-party talks, which aims to find a peaceful resolution with regard to the North Korean nuclear weapons program. By taking the lead in setting up a united front through bilateral action, might Japan be able to act as a stabilizing force in the Koreas and in East Asia at least in the medium term?
Japan's increasingly active role in restarting the six-party talks signals a more distinctively self-interested posture regardless of any perceived alignment with US interests. There is no question that the stakes are high for Japan in the denuclearization and suspension of missile tests of North Korea. However, seeing itself with less choices among a host of available remedies under international law (with reprisals clearly out of the question), and the limitation of self-defense posed by Article 9 of the Japanese Constitution, all leave Japan with diplomacy, no more. Japan's resort to diplomatic vernacular without turning to black letter international law, whether treaty or custom, implicates yet again the greater question of whether international law in the first place can still be an effective instrument for peace and orderly state relations in the heart of Asia today. The ineffectiveness of background norms of international law in Korea's denuclearization and disarmament is clearly demonstrated by Kim Jong-il's (and presumably, Kim Jong-un's) policy of continuing nuclear and missile testing and development in the face of UN-backed sanctions. There is no question that the DPRK to this day has disregarded all international disarmament agreements and continuously refuses to fulfill its obligations under the North-South Declarations on the Denuclearization of Korean Peninsula, the International Atomic Energy Agency Safeguard Agreement, the US-North Korean Agreed Framework, and the Nuclear Non-Proliferation Treaty (NPT). These conventions, no doubt of great import since the last world war, have been upheld, more or less, most of the time, by the majority of states. The case of North Korea, however, is demonstrative of the fact that the third largest economy in the world can turn to no effective remedy under international law. Not only implicating the failure of effective remedies, the DPRK's tenacity in the face of UN censure may well reveal flaws in the substance and normativity of the agreements themselves.

This is particularly the case of the Non-Proliferation Treaty. As the most important international agreement in denuclearization and disarmament, the NPT makes no provision of any concrete enforcement mechanism. Worse, Article X of the NPT states: "Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country." With no oversight body capable of being perceived as legitimate by North Korea, the rogue state has been able to renege all prior treaty stipulations and withdraw from arguably erga omnes obligations by simply invoking "self-defense." By deploying characteristically Western-style vernacular, the DPRK effectively excused itself from treaty law. Now as a non-party to the NPT, the West and Japan will have little choice but to turn to custom as a source of law, which will likely again turn to the question of self-defense, but now from the other side of the fence.

International sanctions currently in force against North Korea are comprised of economic and commercial sanctions and find their bases in UN Security Council Resolution 1718 in 2006 and Resolution 1874 in 2009. Even then, a counterweight in the form of financial assistance, regardless of source, is always internationally acceptable under Resolution 1874 "for humanitarian or developmental reasons," which appears to be China's justification for propping up the DPRK in times of famine or severe fiscal need. Due to competing interests between China and Russia on the one hand, and the US and its allies on the other, it is unlikely to expect any legitimate use of force under Article 42 of the UN Charter as a possible measure to denuclearize North Korea. In short, the current international legal framework offers Japan no "legal" solution for nuclear and missile threats. While it may try to invoke US military support under the US-Japan Security Treaty, Japan should always consider the limitations posed by Article 9 of its Constitution, which forbids not only the use of force as a means of settling international disputes but also forbids Japan from maintaining an army, navy or air force, directly or indirectly, that is, through a proxy (read: the US) for purposes beyond those contemplated by Article 9. Although the Supreme Court of Japan has affirmed the constitutionality of armed self-defense in several rulings, it remains to be seen how far Japan's executive and security forces can stretch the meaning of "self-defense" under extraordinary circumstances, particularly if faced with yet another missile test by North Korea. And certainly Japan's courts will not go so far as to legitimize preemptive strikes in the way Israel does whenever it perceives any threat to its territorial integrity.

In short, Japan has no constitutional justification to deploy force, and it also has no effective international legal remedy. Understandably then, Japan took the more activist diplomatic route to resume the six-party talks according to the original objectives of the 2005 Joint Statement following the death of Kim Jong-il. It really has no other choice. Presently, North Korea must meet preconditions (ending uranium enrichment and commence denuclearization) for the talks to resume, and thus it may be wary of any compromise. North Korea may become imprudent and confrontational if the wrong buttons are pushed. The resumption of the talks depends on whether the DPRK feels secure enough to project its perception of stability and continued power and strength over South Korea and the rest of the region. If interested actors — such as the US, South Korea, Japan, and China — give friendly signals to North Korea through continuing food aid to the country or possibly waiving preconditions for the resumption of talks, Kim Jong-un may find it increasingly difficult to refuse Japan's offer.

Meanwhile, if the parties involved are not able to revive the nuclear talks in the short term, it may be necessary for Japan to think of other diplomatic alternatives. It has taken the right first step in engaging China, but China has shown unwillingness to share information about its diplomatic relations with North Korea, and this could have potentially dangerous and unpredictable consequences for Japan. Although Japan, China and the US have common interests in the region's peace and security, Japan's interest in North Korea largely stems from security concerns, rather than any altruism over Korean reunification, and officials must take this into account when figuring out possible ways to amend its relationship with North Korea.

During prior six-party negotiations, Japan demanded a remedy for North Korea's abductions of Japanese citizens to train communist spies during the Cold War. In 2002, following a meeting in Pyongyang with Kim Jong-il, then-Prime Minister Junichiro Koizumi signed the Japan-DPRK Pyongyang Declaration to resolve the uneasy relationship between the two countries, provide reparations for World War II suffering through economic aid and cooperation with North Korea (including the "comfort women" issue), and promote dialogue on security issues such as nuclear and missile development. The two parties also discussed the abduction issue, with Kim Jong-il returning five of the abductees to Japan. However, the Japanese public was enraged to learn about the death of at least a dozen other Japanese citizens, and officials claimed that the North Korean regime did not truthfully account for the fates of their abductees.

Bilateral relations between the two countries stalled as a result of this row, as well as disputes on the nuclear weapons program, but the succession of Kim Jong-un prompts the question of whether Japanese diplomacy will have more luck this time around. Regardless of its oft-shaky relationship with North Korea, Japanese officials may find it in their best interests to ignore past bruised egos and unfavorable public opinion, and perhaps directly engage North Korea's new administration (instead of using the good offices of China) to effectively maintain security in its shores and in the region. It is possible that Japan may simply choose to live with a dangerous neighbor for the time being, but normalizing bilateral relations is an important step that the Noda administration must seriously consider today. While security and nuclear concerns against North Korea are always well founded, the possibility of immediate conflict in the region may be slight. A period of calm may continue in the next few months while the government and military rally the country behind the new Supreme Leader and consolidate its new internal power structure. In these times, it would be wise for Japan — as well as other countries with interests in the region — not only to maintain its vigilance, but also to encourage the resumption of the six-party talks and engage in normalizing bilateral relations with North Korea, not through proxies such as the US or China, but through direct constructive engagement.

Author's Note: A special thanks to Joan Martinez and Christina Shi for their thoughts and comments.

Edsel Tupaz is the founder and managing partner of Tupaz & Associates, a public-interest law firm. His expertise lies in comparative constitutional law, trade and development law and court systems design. Tupaz is also a professor of international and comparative law, teaching at law schools in the US and the Philippines. He clerked for former Philippines Chief Justice Hilario Davide and is a graduate of Harvard Law School and Ateneo Law School.

Suggested citation: Edsel Tupaz, Nuclear Law and Diplomacy After Kim Jong-il, JURIST - Sidebar, Jan. 17, 2012, http://jurist.org/sidebar/2012/01/edsel-tupaz-north-korea.php.

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