By George Chamilakis, Junior Analyst KEDISA
The international legal framework governing the legal status of nuclear weapons has been a shadowy matter. The illegality of their testing and their proliferation is neither self-evident nor certain. Several multilateral treaties have been established over the years, with the aim of preventing nuclear proliferation and testing, while promoting progress in nuclear disarmament. These include the Comprehensive Nuclear-Test-Ban Treaty (CTBT), which was signed in 1996 but has yet to enter into force, the Treaty Banning Nuclear Weapon Tests in The Atmosphere, In Outer Space and Under Water, also known as the Partial Test Ban Treaty (PTBT), and the, substantive, Treaty on the Non-Proliferation of Nuclear Weapons (NPT).
Firstly, concerning the legality of nuclear testing, Article 1(1) of the Comprehensive Nuclear-Test-Ban Treaty (CTBT) prohibits the testing of nuclear weapons. However, the CTBT, with 183 signatory nations, has not entered into force because of the lack of ratification by several states, which means that it does not constitute international law, and thence, even a State which has signed and ratified the treaty is not legally obliged to exercise its components. The question that consequently arises, is if the testing of nuclear weapons is illegal under customary international law, namely as to whether the state practice and opinion juris of sovereign states of the international community attest to the belief that testing nuclear weaponry is considered illegal, and thus rendering such testings unlawful regardless of treaty law. When the identical question arose at The International Court of Justice during its Advisory Opinions of Australia vs France (1974) and New Zealand vs France (1974), the court came with no answers to the matter. Thence, examining the subsequent state practice may provide more clarity. The United States tested their last nuclear bomb in 1992; Russia in 1990; United Kingdom 1991; France 1996; China 1996; India 1998; and Pakistan 1998. DPRK, also, has been conducting nuclear tests since 2006. There exists no consensus that qualifies the prohibition of testing nuclear bombs as custom. In fact, it can be argued that this is the primary reason that the United Nations Security Council has strongly «condemned» the tests but has refrained from suggesting that it is in violation of international law.
Ιnternational law regulates the proliferation of nuclear weaponry, predominantly via treaty law, and namely the Treaty on the Non-Proliferation of Nuclear Weapons, or NPT. The NPT treaty does not contain a rule prohibiting the use of nuclear weapons. The primary purpose of the Treaty at the time of its inception, was to prevent further proliferation of nuclear weapons. In Article II of the NPT Treaty it is written that «Each non-nuclear-weapon State Party to the Treaty undertakes not… to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices». The Democratic People’s Republic of Korea (DPRK) became a state party to the NPT in 1985 but, after invoking Article X of the said treaty, announced in 2003 that it would withdraw from the treaty. For the appliance of Article X, the state which invokes the article needs to give a 3-month notice of its intent to the United Nations Organization, and an «extraordinary» reason which «jeopardizes the supreme interests of the country» must exist. North Korea’s stated reasons were that the United States was threatening its security by its hostile policy toward it.
Since there had not been held any abirritations for settling the matter, there can be no ‘’official’’ affirmation as to whether the stance of the USA was indeed hostile, and thus meeting the first criterion. In addition to that, North Korea failed to give a 3-month notice to the UN Security Council, and seemingly does not fulfil neither the second criterion. However, the American Society of International Law finds that: «Noncompliance with the notice requirement does not necessarily mean that the withdrawal from the NPT is invalid. The requirement is couched in terms of a promise to give three months’ notice, rather than as a condition that would have to be met in order to make the withdrawal effective». It can be concluded, that the North Korean withdrawal from the NPT was, probably, legally effective only after the 3-month notice period had passed, but not that the failure to give the 3-months’ notice made the entire North Korean withdrawal announcement illegal and ineffective per se.
Moreover, international state institutions, including the Security Council, have been reluctant to acknowledge its withdrawal; North Korea is still listed among the state parties to the NPT in United Nations documents, with a mention that the «status of the membership of the DPRK is uncertain». This element, seems to have been the legalization factor for the many sanctions that the international community has imposed on North Korea over the years; recognizing North Korea’s withdrawal as legitimate, would deprive the international community from the power to impose sanctions, and furtherly, would deprive it from the agency of exercising political pressure, losing its (legitimate) capability to strengthen the grip around the Pyongyang regime.
The last question that needs to be answered is as to whether the NPT constitute international customary law. Pursuant to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, NPT Treaty does not constitute customary law. The court decided unanimously, that there is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons. Also, the General Assembly resolutions, that were put before the Court, fell short of establishing the existence of an opinio juris on the illegality of the use of nuclear weapons. In fact, in General Assembly’s view, it was explicit that there was no customary law prohibiting the use of nuclear weapons.
In conclusion, it can be extracted that the testing and possession of nuclear weapons is not against international law. North Korea’s state practice for the last decade has been limited to that, with several threats of use of force being a two-way rhetoric; The use of nuclear weapons, however, whether if it ever occur, is adjudicated by the International Court of Justice in 1996 to generally be against the rules and the principles of International Humanitarian Law, as they would violate the principle of discrimination and the principle of proportionality. Thus, the Security Council invokes the decisive Chapter VII articles, which concern the threats to international peace and security to impose sanctions on North Korea and condemn its policy. Because of North Korea’s volatile regime, and because of its destabilizing and potentially threating stance towards members of the international community throughout the years, Chapter VII is the only legitimate expedient that the international community currently possess.
Bibliography and Sources:
1. Christine d. Gray, 2004, International law and the use of force, Oxford University Press,
- Kelsey, D. 2018 «Chronology of U.S.-North Korean Nuclear and Missile Diplomacy» Αrms Control Association
- Bolton, D. 2012 «North Korea’s Nuclear Program» American Security Project
- Martin J., 2011. U.S-DPRK Agreed Framework, Middlebury Institute of International Studies
- International Committee of the Red Cross, 2018, Nuclear Weapons, Article, (Online), available at: https://www.icrc.org/en/document/nuclear-weapons
- Francois Carrel-Billiard and Christine Wing, 2010, North Korea and the NPT, International Peace Institute, available at: https://www.ipinst.org/wp-content/uploads/2010/04/pdfs_koreachapt2.pdf
- Frederic L. Kirgis, 2003, «NORTH KOREA’S WITHDRAWAL FROM THE NUCLEAR NONPROLIFERATION TREATY», Volume 8: Issue 2, American Society of International Law, available at: https://www.asil.org/insights/volume/8/issue/2/north-koreas-withdrawal-nuclear-nonproliferation-treaty
- Christopher J. Le Mon, 2006, International Law and North Korean Nuclear Testing, Volume 10: Issue 27, American Society of International Law. Available at: https://www.asil.org/insights/volume/10/issue/27/international-law-and-north-korean-nuclear-testing
- Geneva Academy or the International Law and Policy Institute, 2014, Nuclear Weapons Under International Law: An Overview, available at: https://www.geneva-academy.ch/joomlatools-files/docman-files/Nuclear%20Weapons%20Under%20International%20Law.pdf
- Kelsey Davenport, 2018, UN Security Council Resolutions on North Korea, Arms Control Association. Available at: https://www.armscontrol.org/factsheets/UN-Security-Council-Resolutions-on-North-Korea
- United Nations Office for Disarmament Affairs (UNODA), Nuclear Weapons, (Document), available at: https://www.un.org/disarmament/wmd/nuclear/
 The text of the treaty can be found here: https://www.ctbto.org/fileadmin/content/treaty/treaty_text.pdf
 The decision of the International Court of Justice can be found here: https://www.icj-cij.org/en/decisions. Advisory opinions are cited in this paper because even if they do not constitute case law and thus, a source of international law, they still provide the interpretation of ICJ for what international law is.
 Alam, Sakif. (2017) “Do North Korea’s nuclear tests violate international law?” thedailystar.net. https://www.thedailystar.net/opinion/global-affairs/do-north-koreas-nuclear-tests-violate-international-law-1470622 (accessed September 20, 2018).
 Alam, Sakif. (2017) “Do North Korea’s nuclear tests violate international law?” thedailystar.net. https://www.thedailystar.net/opinion/global-affairs/do-north-koreas-nuclear-tests-violate-international-law-1470622 (accessed September 20, 2018). The text of the treaty can be found here: https://www.un.org/disarmament/wmd/nuclear/npt/text/
 Article X Article X, Paragraph 1 of the NPT provides:
«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. It shall give notice of such withdrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.»
 “NUCLEAR ENERGY, NONPROLIFERATION, AND DISARMAMENT.” (2010) ipinst.org. https://www.ipinst.org/wp-content/uploads/2010/04/pdfs_koreachapt2.pdf (accessed September 20, 2018).
All sanctions against DPRK concerning its nuclear technology can be found here: https://www.armscontrol.org/factsheets/UN-Security-Council-Resolutions-on-North-Korea
 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996, I.C.J, par. 105
 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996, I.C.J, par. 105 (E)
 However, those principles would be violated only if the target of the used nuclear weapons were to be countervalue. (In nuclear strategy, the targeting of an enemy’s cities and civilian population with nuclear weapon is called countervalue strategy, and the targeting of an enemy’s nuclear weapons and other military and industrial infrastructure is called counterforce strategy.
 For more information concerning the use of force under Chapter VII of the UN Charter, see: Christine d. Gray, International law and the use of force, Oxford University Press, 2004, pp 265.