North Korean Links to Building of a Nuclear Reactor in Syria: Implications for International Law

The Bush administration has alleged that North Korea provided assistance to Syria's efforts to build a nuclear reactor, which Israeli warplanes attacked and destroyed on September 6, 2007.[1] The U.S. allegations, made in cooperation with Israeli intelligence, have serious implications for the stagnating North Korean nuclear disarmament process, the security situation in the Middle East, and international efforts against the proliferation of nuclear weapons. This Insight analyzes the implications of this development for international law on nuclear weapons and on the use of force.

The U.S. Allegations of North Korean-Syrian Cooperation on the Syrian Nuclear Reactor

Israeli suspicions of the remote Syrian site, code-named Al Kibar, were verified by video images secretly acquired by Israeli intelligence. The images appeared to show the design of a reactor similar to the reactor at the North Korean Yongbyon plant, which produced plutonium for North Korea's nuclear weapons program. The video apparently also showed North Koreans working at the Al Kibar site. U.S. officials have said that Israel shared the video with them before the September 6th attack.[2]

The attack destroyed the site, which U.S. and Israeli officials have said was under construction for years. After the attack, the Syrian government issued diplomatic protests and bulldozed the area. Syria has not allowed international inspectors to visit the site.[3]

Implications for the Nuclear Non-Proliferation Treaty, IAEA Safeguards Agreements, and U.N. Security Council Resolutions

North Korea

In terms of analyzing the impact on international law of North Korea's role in this development, two factors are critical: the nature of the materials and technology North Korea shared with Syria, and the timing of the North Korean-Syrian cooperation. Unfortunately, at present, insufficient evidence exists to undertake a definitive analysis, but the issues and potential consequences are sufficiently serious to evaluate what is known with respect to applicable rules of international law.

In terms of what North Korea may have shared with Syria, the allegations made to date do not include accusations or evidence that the materials and technology exchanged relate to anything other than the construction of a nuclear reactor. There has been no evidence produced of the presence at the site of nuclear fuel for the reactor. As of this writing, neither Israel nor the United States has presented any evidence or made any direct allegation that Syria intended to use the shared materials and technologies to develop nuclear weapons.[4] In this light, international legal analysis must focus on the legality of North Korea's export of civilian nuclear related materials and technologies to Syria.

The timing of the cooperation between North Korea and Syria becomes critical in this analysis because North Korea withdrew from the Treaty on the Non-Proliferation of Nuclear Weapons (NPT)[5] in April 2003. If North Korea's assistance to Syria pre-dated April 2003, then North Korea's obligations as a non-nuclear weapon state under the NPT would be relevant. If the assistance occurred after North Korea withdrew from the NPT, then any liability under international law for North Korea's actions must be found, if at all, in other legal sources.

In terms of activities that pre-dated North Korea's NPT withdrawal, the NPT obligates all states parties not to share nuclear related materials and technologies for civilian use unless safeguards administered by the International Atomic Energy Agency (IAEA) apply to those materials and technologies (Article III(2)). Although Syria has an IAEA safeguards agreement covering its known civilian nuclear research and development facilities, Syria had not declared the site of the facility at which it was cooperating with North Korea. This site was not, therefore, subject to IAEA safeguards.[6] By sharing of nuclear related materials and technologies with Syria for use at a nuclear facility not covered by IAEA safeguards, North Korea would have breached the NPT.

If the exchange of materials and technologies had taken place after North Korea's withdrawal from the NPT, then international legal liability under the NPT cannot be established. Furthermore, unlike many multilateral treaties, NPT obligations have not become customary international law. The NPT is a contract treaty (traite-contrat) rather than a law-making treaty (traite-loi), and thus its rules do not transfer readily through state practice into customary international law. In addition, the NPT contains a two-tiered and diversified body of obligations for nuclear weapons states and non-nuclear weapons states respectively, which inhibits the development of customary international law on the basis of the NPT's rules.[7]

There is, however, another source of treaty law specifically prohibiting North Korea's sharing of nuclear related materials and technologies with another state. United Nations Security Council Resolution 1718, decided on October 14, 2006, forbids North Korea from exporting a broad range of delineated single-use and dual-use nuclear related materials and technologies.[8] If the allegations of the United States and Israel are true, then it is likely that prohibited items were exported to Syria by North Korea. However, timing again becomes material as this special obligation imposed by the Security Council, pursuant to North Korea's obligations under U.N. Charter Article 25, is not retroactive in application, and would only apply to such activities after October 14, 2006. The export to Syria of any such materials and technologies after October 14, 2006 would constitute a breach of international law.[9]

Syria

Syria is a NPT state party and, as mentioned above, has a safeguards agreement with the IAEA.[10] Under the NPT, Syria is entitled to maintain a civilian nuclear research and energy program, subject to IAEA safeguards (Article IV). The IAEA has applied safeguards to Syria's nascent nuclear research programs, and has assisted Syria in developing these programs, including assistance in uranium exploration, uranium extraction from phosphoric acid, isotope production, construction of a cyclotron facility, development of nuclear research laboratories, and preparation for a nuclear power program.[11]

If the allegations that Syria received nuclear related materials and technologies from North Korea for developing a facility Syria had not declared to the IAEA are true, then Syria has breached its safeguards agreement with the IAEA.[12] This violation would be similar to Iran's violations of its IAEA safeguards agreement in its concealment of uranium enrichment activities at its Natanz and Arak facilities.[13] However, a breach of an IAEA safeguards agreement does not per se equate to a violation of the NPT.

IAEA safeguards agreements are independent, self-contained treaties concluded between states and the IAEA, through the exercise of its international legal personality.[14] Safeguards agreements, and the IAEA's administration of the verification and monitoring provisions contained in them, are not a subsumed part of the NPT's provisions. The IAEA as an organization, and its role in administering safeguards arrangements individually negotiated with states, pre-dates the conclusion of the NPT by 11 years.[15] Safeguards agreements are related to NPT obligations only through the obligation undertaken by states parties to the NPT in Article III(4) to conclude a safeguards agreement with the IAEA.

As Iran has done,[16] Syria may maintain that any breach of its IAEA safeguards agreement does not violate the NPT because the activities at the undeclared nuclear facility were in keeping with Syria's inalienable right under the NPT to engage in nuclear related research and to develop nuclear energy for peaceful purposes (Article IV). Under this reasoning, Syria would only have violated the NPT if it had engaged in development of nuclear weapons at the site. As noted above, neither Israel nor the United States have claimed that Syria had a nuclear weapons program at the site in question when Israel destroyed it.

However, Syria may only maintain the legality of its activities at the site by reference to NPT Article IV up to October 14, 2006. In operative paragraph 8(b) of U.N. Security Council Resolution 1718, the Council decides "that all Member States shall prohibit the procurement" by their nationals of the delineated single and dual-use nuclear related items from North Korea. Syria is under obligation, pursuant to Article 25 of the U.N. Charter, to abide by the decisions of the Council. Article 103 of the U.N. Charter makes clear that the obligations of the Charter are supreme over all inconsistent international legal rights and obligations. Thus, notwithstanding NPT Article IV, acceptance by Syria of any of the nuclear related materials and technologies delineated in Resolution 1718 from North Korea, which took place after October 14, 2006, constitutes a breach of international law.

Implications for International Law on the Use of Force: Re-Visiting Israel's September 2007 Attack on the Syrian Reactor

Whether the activity at the Syrian site was weapons related or civilian in character, Israel's action in attacking and destroying the site was almost certainly a breach of international law. Article 2(4) of the United Nations Charter, of which Israel is a member, prohibits uses of force "against the territorial integrity" of any other state. States retain the inherent right of self-defense as defined in Article 51 of the Charter. Article 51 allows unilateral acts of force in self-defense on a temporary basis "if an armed attack occurs" against a member of the United Nations. As Syria had not yet attacked Israel, any justification for Israel's use of force pursuant to Article 51 must be found, if at all, by resort to the principle of anticipatory self-defense.

Anticipatory self-defense was part of pre-Charter customary law, and many argue that states are still entitled to rely upon the principle. However, even if this contention is correct, anticipatory self-defense must be understood to be limited in its applicability to situations of imminent threat. As observed by U.S. Secretary of State Daniel Webster during the 1841 Caroline controversy, in order for the principle of anticipatory self-defense to apply, there must be a "necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation." Even if such a situation of imminence arises, a use of force in anticipatory self defense may only be carried out in accordance with the customary international law principles of necessity and proportionality.

There are no facts alleged against Syria which would meet the required test of imminence under the principle of anticipatory self-defense. Again, there are no allegations or evidence that the site served a weapons development purpose. The sort of imminence of threat demanded by the doctrine of anticipatory self-defense is clearly not presented by the simple fact of the construction and maintenance of a nuclear reactor in Syria. Neither Syria's breach of its IAEA safeguards agreement, nor its breach of U.N. Security Council Resolution 1718, have any bearing on this analysis. Israel's attack on Syrian territory thus constitutes a breach of Article 2(4) of the United Nations Charter.

The September 2007 action by Israel is reminiscent of its 1981 attack on an Iraqi nuclear reactor under construction at Osirak. On that occasion as well, the reactor was destroyed. However, in the aftermath of the attack, the U.N. Security Council unanimously passed Resolution 487, which denounced the incident as a "clear violation of the Charter of the United Nations."[17]

Though a subject of ongoing debate, it is doubtful that the substance of international use of force law regarding anticipatory self-defense has changed in any material respect since 1981. However, the Israeli attack upon Syria will no doubt stimulate renewed discussion on this point.[18]

About the Author
Daniel Joyner, an ASIL member, is Associate Professor of Law at the University of Alabama School of Law. He is the author of the forthcoming book International Law and the Proliferation of Weapons of Mass Destruction (Oxford University Press, 2008).

Footnotes