Currently in the news is the concern expressed by the leaders of the US, China, Russia and other major countries over the nuclear weapons testing and development program being conducted by North Korea. The North Korean military tested an ICBM (inter-continental ballistic missile) in the past few days, capable of delivering a nuclear warhead as far away northern Australia or Alaska.
The US ambassador to the United Nations announced that the US was “prepared to use force” on North Korea to stop its nuclear weapons program if diplomacy fails to work: see the report by the Sydney Morning Herald. This raises some interesting questions. What right does the United Nations and its member countries like the US have to intervene in a situation like this? And, what right does the US have to use military force on a country that it doing things the US disapproves of?
The Nuclear Non-Proliferation Treaty
In 1968, a number of countries signed the Nuclear Non-Proliferation Treaty or NPT: see the Wikipedia article. Under this treaty, countries that already had nuclear weapons were allowed to keep them, but committed to reducing their levels of nuclear weapons, The Soviet Union (now Russia) and the US agreed to do this, for example, under their bilateral START agreement signed in 1991 and renewed in 2010. Countries that didn’t have nuclear weapons agreed that they would not build them.
North Korea signed the NPT in 1985, didn’t comply with it and started developing nuclear capabilities, and withdrew from the treaty in 2003. So, the treaty doesn’t apply to North Korea, and technically it is free to develop nuclear weapons if it wants to.
Can The UN Authorise An Attack On North Korea?
But that isn’t the end of the story. Under international law, the UN security Council has authority to supervise the collective security of the member countries, which includes most of the world, including North Korea. If it wants to, the Security Council can order North Korea to stop building nukes and authorise its other member countries to attack North Korea if it doesn’t.
Would it do that? Maybe, but the UN Security Council has a structure that makes decision making on controversial issues difficult. It has five permanent members, which are basically the countries that emerged on the winning side of World War 2: Russia, UK, France, US and China. In addition, it has a number of non-permanent members who are drawn from the other member countries on rotation. If the US, for example, asked the Security Council for permission to attack North Korea, it is likely that one of the other permanent members, probably China, would veto (block) that request from being granted.
Can The US Attack North Korea Anyway?
Yes, but it would be acting outside the recognised legal framework for taking international military action. This has happened before, of course, where countries feel forced to “go alone” and intervene because they can’t get the UN to approve of their action. The problem with attacking North Korea, however, is that the North Koreans could attack back, in a big way – maybe not the US but possibly South Korea and Japan. A war with North Korea would also probably affect China, which is North Korea’s norther neighbour and one of the few countries in the world that has a friendly relationship with the North Korean government. China is a very important trading partner of the US and it probably isn’t a good idea to have nuclear bombs going off on the Korean Peninsula and Japan and winds blowing the radiation all over China and the rest of the world. (Those are just my thoughts, I’m a lawyer, not a military strategist.)
The best way for the North Korean nuclear weapons problem to be solved is by negotiation and diplomacy, and for China to find a way to pressure its “friends” in Pyongyang to stop development. But if they can’t do that, a less attractive solution may be implemented by President Trump in America, like it or not, UN approval or not.
[This blog post was written by James Irving, a lawyer in Perth, Australia. It is not intended as legal advice for any particular person. Photo credit: public domain image of an original copy of the 1968 Nuclear Non-Proliferation Treaty by Barronet; copy held in the archives of the French Government, and used here under a CC BY-SA 4.0 licence.]