North Korea and the legality of nuclear tests

By Mariane Gravelle July 5, 20175 July 2017

North Korea and the legality of nuclear tests

A large number of sanctions imposed on their nation as a result of previous missile-launch tests does not seem to have deterred the North Korean government from engaging in yet another test of that nature. On July 4th, Pyongyang launched what they claimed to be an intercontinental ballistic missile (ICBM) into the waters bordering Japan. Especially concerning is the fact this latest missile – if fired on the right trajectory – could potentially reach Alaska. Says The Economist,

“The missile appears to have flown for 37 minutes before splashing down some 930km from its launch. According to David Wright of the Union of Concerned Scientists, it had a lofted (heightened) trajectory, reaching an altitude of 2,800km. On a more conventional trajectory, the same missile would have a range of about 6,700km. That would be enough to reach Alaska, but not Hawaii or the American mainland. However, the minimum range needed to qualify as an ICBM is typically held to be 5,500km, so North Korea may be justified in describing this missile as one.

This test comes after a similar one on May 14th; the missile used then, also on a lofted trajectory, was thought to have a potential range of 4,500km.”

The isolated nation’s missile tests are in direct conflict with the United Nations’ Treaty on the Non-Proliferation of Nuclear Weapons (NPT), whereby “[…states] party to the treaty undertake […] not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices”. Having initially ratified the treaty in 1985, North Korea became the first state to withdraw from it in 2003.

Given that the nation is no longer party to this treaty, it is not immediately clear whether their actions constitute a breach of international law. Writing for the American Society of International Law (ASIL) in March 2017, Daniel Rietiker explains that

“The legality of nuclear tests is not certain under international law, and the relevant sources of international law are incomplete and fragmentary. The question of legality depends on the concrete circumstances of the test, in particular the environment—underground, atmospheric, outer space, under water, and transboundary. Certain treaties establish a clear prohibition, but they are limited and contain withdrawal clauses. Moreover, in spite of the high number of ratifications and the fact that the [Comprehensive Test Ban Treaty]’s preparatory commission established its structure many years ago and has started its verification activities, the CTBT is still not in force and needs the ratification of several key states. In this situation, it is also uncertain whether Article 18 [of the 1969 Vienna Convention on the Law of Treaties] is still pertinent. Finally, it cannot be asserted convincingly that a general prohibition of nuclear weapons testing derives from other sources of international law.”

The UN’s Secretary-General António Guterres strongly condemned this latest launch. Said a statement attributable to his spokesperson .

“This action is yet another brazen violation of Security Council resolutions and constitutes a dangerous escalation of the situation. The [Democratic People’s Republic of Korea] leadership must cease further provocative actions and comply fully with its international obligations.

The Secretary-General underlines the importance of maintaining the unity of the international community in addressing this serious challenge.”

This test comes one month after the most recent meeting of the UN Security Council regarding North Korea’s testing of nuclear weapons, after which the Security Council condemned such testing and “reaffirmed its decision that the Pyongyang must abandon all nuclear weapons and existing nuclear programmes in a complete, verifiable and irreversible manner, and immediately cease all related activities.”

Photo: Some rights reserved by Times Asi.

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