On October 14, 2006, the United Nations Security Council unanimously adopted resolution 1718 (2006), reacting to the announcement on October 9, 2006, by North Korea (the Democratic People's Republic of Korea, or DPRK) that it had conducted an underground nuclear weapon test. The resolution contains several uncommon provisions that warrant closer inspection from a legal perspective, in particular regarding their conformity with UN Charter law and the limits (if any) on the competences of the Security Council.

Overview

In the resolution's preamble, the Security Council expressed its gravest concern over the DPRK's claim that it had conducted a nuclear weapon test. In addition, the Council recalled that the DPRK could not acquire the status of a nuclear weapons state under the Treaty on the Non-Proliferation of Nuclear Weapons (Non-Proliferation Treaty, NPT).[1]

The Council determined that a threat to international peace and security exists. Under Chapter VII of the UN Charter, the Security Council can take binding measures for the maintenance of international peace and security (Article 39 of the Charter). Unlike the two previous resolutions on the DPRK, which had not explicitly referred to Chapter VII,[2] the new resolution contains provisions legally binding on the DPRK and UN member States (Article 25).

The Council invoked Article 41, which only allows for measures short of the use of force. It declared that further decisions are necessary if the need for additional measures arises. Thereby, the Council pre-empted any assertion that the resolution could be regarded as an authorization for the use of military force.[3] The Security Council condemned the nuclear test and demanded that the DPRK not conduct another test or launch a ballistic missile. Moreover, it decided that the DPRK shall suspend its ballistic missile programme and all existing WMD programmes.

In this context, the resolution contains three clauses warranting greater attention:

In operative paragraph 3, the Security Council demanded that the DPRK "... immediately retract its announcement of withdrawal from the Treaty on the Non-Proliferation of Nuclear Weapons".

In paragraph 4, the Council demanded "... further that the DPRK return to the Treaty on the Non-Proliferation of Nuclear Weapons and International Atomic Energy Agency (IAEA) safeguards".

In paragraph 6, it decided "... that the DPRK shall abandon all nuclear weapons and existing nuclear programmes in a complete, verifiable and irreversible manner, shall act strictly in accordance with the obligations applicable to parties under the Treaty on the Non-Proliferation of Nuclear Weapons and the terms and conditions of its International Atomic Energy Agency (IAEA) Safeguards Agreement (IAEA INFCIRC/403) and shall provide the IAEA transparency measures extending beyond these requirements, including such access to individuals, documentation, equipments and facilities as may be required and deemed necessary by the IAEA."

 

In addition to these obligations for the DPRK, the Council established a set of targeted sanctions, which inter alia prohibit the provision to the DPRK of large-scale arms, of technology and training relating to ballistic missiles or to weapons of mass destruction (WMD), and of luxury goods. The resolution also placed a ban on DPRK exports relating to ballistic missiles or WMD technology. To implement these sanctions, the Security Council called upon all Member States "... to take, in accordance with their national authorities and legislation, and consistent with international law, cooperative action including through inspection of cargo to and from the DPRK, as necessary" (paragraph 8).

The Sanctions Regime

The Security Council has frequently established sanction regimes[4] and has set up sanctions committees supervising their implementation.[5] The power of the Security Council to set up such regimes is firmly established in international law. Moreover, the Council stays well within the limits of Art. 41, since it explicitly only allows the inspection of cargo through and from the DPRK in conformity with international law. This clause can thus hardly be read to justify boarding of foreign vessels on the high seas to inspect for contraband, without prior consent of the flag state. This seems to have been a controversial point. While the US sought authorization of inspections without consent of the flag State, China announced that it even has reservations about the limited provision that was adopted as a compromise.[6]

For the first time in a concrete case, however, the Security Council has encouraged participation in cooperative inspection initiatives.[7] In the Security Council debate, US Ambassador John Bolton spoke of the resolution as providing for an inspection regime building on the Proliferation Security Initiative (PSI).[8]

The Demand to Abandon Weapons of Mass Destruction

The demand to abandon weapons of mass destruction is not new in Security Council practice. In its resolution 687 (April 3, 1990) the Council decided that Iraq "... shall unconditionally accept the destruction..."[9] of biological and chemical weapons and certain ballistic missile systems, and "... unconditionally undertake not to use, develop, construct or acquire..." these systems.[10] In addition, the Council decided that "... Iraq shall unconditionally agree not to acquire or develop nuclear weapons".[11] Such a creation of concrete legal obligations of the targeted State in order to maintain international peace and security is within the limits of Articles 39 and 41 of the Charter.[12] However, there is some criticism of such definite determination of rights and obligations as these may constitute comprehensive dispute settlement rather than temporary measures during an imminent crisis. Some authors argue that dispute settlement is excluded from binding Chapter VII action and is instead dealt with in Chapter VI.[13] On the other hand, the Security Council has made similar determinations in several cases without much opposition from States.[14] In addition, even if implemented, the measures contained in SC resolution 1718 deal with a concrete threat to international security and are aimed at the prevention of an arms race in the region. Moreover, the resolution also calls upon the DPRK to return to the six party talks, which are intended to lead to a comprehensive settlement.

The Demand to Retract the Announcement of Withdrawal from the NPT

The demand that the DPRK retract its announcement of withdrawal from the NPT leaves room for two possible interpretations. One possibility is that the Council considers the withdrawal legally invalid and simply demands that the DPRK publicly accept the fact that it has not validly withdrawn. There is some room for such an interpretation, since Art. X, paragraph 1 of the NPT provides that a party to the NPT may only withdraw "... if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country." However, this leaves the decision to the withdrawing party's own judgment. Accordingly, the right to withdraw is only subject to the requirement of good faith, and the NPT establishes no mechanism for determining if a party has complied with this requirement.[15] The U.S. withdrawal from the ABM treaty, for example, was based on a similar clause.

Thus, paragraph 3 of the resolution should be understood in a more political sense, especially if read together with the demand to rejoin the treaty contained in paragraph 4 of the resolution: The Security Council apparently intended to demand that the DPRK return to the NPT. This is also in line with previous Security Council statements.[16]

The Demand to Return to the NPT and IAEA Safeguards

According to the unequivocal wording of the resolution, the DPRK is required to return to the safeguards in the framework of the International Atomic Energy Agency (IAEA). The expression appears to be intended to supplement the demand that the DPRK return to the NPT itself (and not only to the safeguards). If read in this way, the Council for the first time requests a State to join a particular multilateral treaty. In resolution 687, the Council had only noted the importance of Iraq ratifying the Biological Weapons Convention, but did not explicitly demand Iraq's accession.

It may also be argued that sovereign equality of States prohibits the Security Council from requiring a State to accede to a particular treaty. However, the UN Charter, a treaty freely entered into by the DPRK, explicitly provides for a Security Council that has the power to make binding decisions. Sovereign equality may thus in itself not constitute a limit to the Council's powers, but it may point to the question of internal limits (i.e. limits imposed by Charter provisions) to Security Council action.

Article 24, paragraph 2 of the Charter calls upon the Council to act in accordance with the Purposes and Principles of the UN, arguably including most norms of a jus cogens nature.[17] Demanding accession to a specific treaty, however, does not violate any of the purposes and principles, let alone jus cogens. Article 2, paragraph 7 explicitly allows the Security Council to intervene even in the domestic affairs of States when it applies enforcement measures under Chapter VII. If "enforcement measures" include any mandatory Council action taken under Chapter VII to maintain or restore international peace and security, article 2, paragraph 7 would not preclude a demand that States adhere to the international non-proliferation regime.[18] But this again raises the question as to the inherent limits of action under Chapter VII.[19]

However, the Council did not declare the DPRK party to the NPT or to a safeguard agreement. Rather, it incorporated the requirements both of the NPT and of the safeguard agreement into the resolution itself: In operative paragraphs 6-8, the Council required the DPRK to act in accordance with the obligations applicable to non-nuclear powers that are parties to the NPT. It thus imparts to these obligations the binding effect of Chapter VII. However, the DPRK is not thereby bound by the NPT as such, but rather by the Security Council resolution. This goes beyond the obligations of NPT parties, since a party may withdraw from a treaty, whereas the DPRK cannot lawfully escape the binding effect of a Chapter VII resolution.

The wording in resolution 1718 is more direct than in resolution 687. In 1991, the Council couched the legal obligations in the language of consent (Iraq had to "accept," to "undertake" or to "agree" to certain steps), while in 2006 it simply spells out what the DPRK has to do. Although these differences seem to be purely linguistic, this direct language is of great interest when read together with the obligations to retract the announcement of withdrawal from the NPT and to act in accordance with the obligations applicable to non-nuclear NPT parties. The Security Council seems thus to be more willing today to directly establish legal obligations stemming from multilateral treaties.

But the Council does not, by itself, return North Korea to the NPT regime. Rather, as in the case of Iraq, it is North Korea that is required to return to the NPT. The resolution merely creates a "NPT-like" regime that is based not on any obligation under the NPT or Safeguard Agreements, but on a Security Council resolution under Chapter VII of the Charter.

Conclusion

From a legal perspective, resolution 1718 is unique in going beyond the detailed obligations imposed on Iraq in resolution 687 (1991). However, although very detailed, the obligations imposed upon the DPRK do not constitute "dispute settlement," but rather are designed to address a concrete crisis. While the DPRK may have been legally entitled to leave the NPT, it cannot lawfully escape the bounds of the Charter regarding international peace and security. That is what the Charter system was designed for.

About the author

Andreas L. Paulus, an ASIL member, is Professor of International and Public Law at the University of Göttingen and is assistant editor of The Charter of the United Nations - A Commentary (2d ed. 2002).

Jörn Müller, assessor iuris, is a doctoral candidate and teaching assistant at the University of Göttingen. His research focuses on international security law, in particular questions of nuclear non-proliferation.

Footnotes

[1] 729 U.N.T.S. 161.

[2] SC Res. 825 (1993) did not contain any reference to Chapter VII and only called upon the DPRK to reconsider its decision to withdraw from the NPT. In SC Res. 1695 (2006) the Council declared to act "... under its special responsibility for the maintenance of international peace and security..." but did not make the determination required by Art. 39 of the Charter.

[3] The Council thus intended to exclude any ambiguity which had determined the debate on Iraq; cf. Andreas Paulus, "The War Against Iraq and the Future of International Law: Hegemony or Pluralism...", 25 Michigan Journal of International Law 697-701 (2004), with further references.

[4] There are numerous examples for comprehensive or "targeted" sanctions, for examples see SC Res. 661, Aug. 6, 1990 (Iraq); SC Res. 883, Nov. 11, 1993 (Libya); SC Res. 1343, Mar. 7, 2001 (Liberia).

[5] For further details, see Andreas Paulus, in: Bruno Simma (ed.), 1 The Charter of the United Nations - A Commentary (2d ed., Oxford: Oxford UP 2002), Art. 29, MN 23-49. As of October 26, 2006 there are eleven active sanction committees, excluding the one established by SC Res. 1718. http://www.un.org/Docs/sc/committees/INTRO.htm.

[6] Record of the 5551st meeting, October 14, 2006, UN-Doc. S/PV.5551, p. 4.

[7] For a more general encouragement of such initiatives, see SC resolution 1540 (2004), para. 10.

[8] Record of the 5551st meeting, October 14, 2006, UN-Doc. S/PV.5551, p. 3. For the Proliferation Security Initiative see Statement of Interdiction Principles, available at http://usinfo.state.gov/products/pubs/proliferation/#statement; Michael Byers, Policing the High Seas: The Proliferation Security Initiative, 98 AJIL 526-545 (2004).

[9] SC Res. 687, Apr. 3, 1990, para. 8.

[10] SC Res. 687, Apr. 3, 1990, para. 10.

[11] SC Res. 687, Apr. 3, 1990, para. 11.

[12] For a general overview, including further SC practice, see Frowein/Krisch in: Simma, Charter (note 5), Art. 41 MN 17; for an analysis of SC Res. 687 see Lawrence D. Roberts, "United Nations Security Council Reosltuion 687 and its Aftermath: The Implications for Domestic Authority and the Need for Legitimacy", 25 NYU J Int'l L & Pol, 593-626 (1993).

[13] Frowein/Krisch in: Simma, Charter (note 5), Introduction to Chapter VII, MN 15, 31, Art. 41 MN 18.

[14] In addition to SC Res. 687, see SC Res. 942, Sept. 23, 1994, concerning the territorial settlement of the Bosnian conflict and several resolutions concerning the duty to surrender terrorist suspects or other criminals (e.g. SC Res. 1267, Oct. 15, 1999, on Afghanistan).

[15] Frederic L. Kirgis, North Korea's Withdrawal from the Nuclear Nonproliferation Treaty, ASIL Insight January 2003, http://www.asil.org/insights/insigh96.htm; Antonio F. Perez, The Survival of Rights under the Nuclear Non-Proliferation Treaty: Withdrawal and the Continuing Right of International Atomic Energy Agency Safeguards, 34 Va J Int'l L 749-840, 785 (1994). The US practice in relation to its withdrawal from the ABM treaty was based on a very similar clause in Art. XV of the ABM Treaty. See the text of the diplomatic note sent to Russia, Belarus, Kazakhstan, Ukraine on December 13, 2001, http://www.state.gov/r/pa/prs/ps/2001/6859.htm.

[16] SC resolution 1695 (2006) contained a clause strongly urging the DPRK's return to the NPT and to IAEA safeguards.

[17] Report of the International Law Commission, 58th session (2006), UN-Doc. A/61/10, p. 422.

[18] For a more detailed treatment, see Georg Nolte, in: Simma, Charter (note 5), Art. 2 (7), MN 50-56.

[19] Cf. the debate on the admissibility under the Charter of a "legislative role" of the Security Council: Stefan Talmon, The Security Council as World Legislature, 99 AJIL 175-193 (2005); Frowein/Krisch, in Simma, Charter (note 5), Introduction to Art. 39, MN 19-20.