The Iranian and North Korean Nuclear Programs and International Law

By John Allen Williams

John Allen Williams is Professor of Political Science, Loyola University Chicago and Chair and President of the Inter-University Seminar on Armed Forces and Society.  He is also Editor of the National Strategy Forum Review.

No issue other than terrorism animates public security discussions more than the strong likelihood of deliverable nuclear weapons being in the hands of North Korea and Iran relatively soon.  Negotiations increasingly seem fruitless, earlier opportunities perhaps being missed, and Israeli forces are practicing for preemptive strikes on Iran as these words are written.

While the military dimension of nuclear proliferation is important, so also is international law.  Even though it is often cited as the justification for actions a state wishes to take for other reasons (the Iraq War comes to mind), international law is more than that.  If the goal is to create a more orderly and stable international environment, the obligations of international law need to be understood and taken seriously – even when important national interests are affected.

The situations of North Korea and Iran differ with respect to international law, because North Korea is currently not a party to the Nuclear Non Proliferation Treaty (NPT), along with India, Pakistan, and Israel.  This treaty obligates signatories to allow inspectors from the International Atomic Energy Agency (IAEA), an organization within the United Nations family, to inspect its nuclear facilities.  States must also respond to IAEA requests for information on nuclear related activities.

Iranian cooperation with the IAEA has been spotty, to be charitable.  In particular, Iran has not been forthcoming about the extent of its nuclear facilities and the enrichment of uranium to weapons-grade quality.  Iranian leaders claim that their program is purely civilian, designed to generate electricity, yet also boast about the increasing number of centrifuges they have and refuse to allow IAEA inspectors to monitor their production of highly enriched uranium.  Such enrichment is allowed under the NPT, but UN Security Council requirements that this activity be reported and monitored have not been observed.

A series of Security Council resolutions have directed Iran to comply fully with its obligations under the NPT and imposed specific obligations on other states in their dealings with Iran not to assist them in their nuclear activities.  The key document is the 2006 Resolution 1737, which noted with concern the reports of the IAEA that Iran was out of compliance with the NPT and directed Iran to suspend “all enrichment-related and reprocessing activities, including research and development, to be verified by the IAEA” and also “work on all heavy water related projects, including construction of a research reactor moderated by heavy water, also to be verified by the IAEA.”  Further resolutions in 2007 and 2008 expressed concern that Iran was not following Security Council and IAEA directives.  Iran is therefore out of compliance with a treaty to which it is a signatory and with resolutions of the UN Security Council.

North Korea is also out of compliance with the UN, but not because of obligations under the NPT.  North Korea became a signatory to the NPT in 1983, but withdrew from the treaty in 2003 when the United States accused it of enriching uranium – accurately, as it turned out.  The UN Security Council responded to the October, 2006 testing of a nuclear device by North Korea with Resolution 1718, which condemned the test and demanded that North Korea “not conduct any further nuclear test or launch of a ballistic missile,” suspend any ballistic missile development program (reinforcing the earlier Resolution 1695), and return to the NPT and IAEA safeguards.  This was based on a reaffirmation that “the proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security.”

The North Korean response to these demands was flagrant noncompliance, including further nuclear weapons and ballistic missile tests and declaring invalid the 1953 armistice which ended the Korean War.  The UN response shows its limited ability to coerce states to obey its resolutions.  Security Council Resolution 1874, in June, 2009, reiterated earlier condemnation and demands and greatly expanded the categories of goods and assistance that member states of the UN can provide to North Korea.

Resolution 1874 also calls for inspection of North Korean vessels to ensure they are not carrying prohibited material, now including light weapons.  States are allowed to intercept such vessels for inspection, with the huge exception that the consent of the flag state is required.  If it will not give consent for a search on the high seas, the flag state is mandated to direct its ship to port for inspection. It is difficult to imagine North Korea cooperating in any way with these demands, and there is no provision for the use of force to compel compliance.  North Korea responded that any such interception would be interpreted as an act of war – although technically they are already in a state of war, having renounced the 1953 armistice.

Both the Iranian and the North Korean cases show the limits of international law to compel state compliance with international obligations, either those specifically agreed to (Iran) or imposed upon them by the United Nations (North Korea).  Political realists have long pointed out that it is a “self help” world in which nations do what they believe to be in their interest.  If the costs of compliance are deemed greater than noncompliance, nations will not comply.  The United Nations has only limited ability to raise the costs of noncompliance, except through its exhortations to member states to help enforce its decisions.  In this effort, only the actions of major powers have a chance of being effective.

Strategists need to consider the possibility of greatly increased nuclear proliferation if nearby states feel threatened by a nuclear armed North Korea or Iran.  Given the importance to those countries of their nuclear programs, it is hard to be hopeful that the international community will get its way without greatly increasing the pain for noncompliance.  That will be both difficult and dangerous.  Still more dangerous would be an Israeli decision that their survival as a state requires them to deal with the Iranian nuclear problem for themselves.  This is a real possibility if the international community cannot act effectively.