In the thoroughly interesting post "Did North Korea's Nuclear Test Violate International Law?" Opinio Juris guest writer Christopher Le Mon addresses his title-question, which proves no small task. After resolving that North Korea's nuclear test did not violate any positive international law, Le Mon goes on to argue:
[I]s the international legal order a worthless burden on international affairs? Hardly. In fact, the core institution of the international legal order -- the United Nations -- offers the best means for an effective multilateral response to the dangerous and provocative North Korean nuclear tests.
In the last paragraph of its 6 October 2006 Presidential Statement [link added], the Council used the "magic words" of Chapter VII of the UN Charter: "threat to international peace and security." Article 39 of the Charter gives the Security Council the power to determine whether a given situation constitutes a threat to international peace and security. ... Once the Security Council determines that a situation constitutes a threat to international peace and security (which determination appears to have been already made vis-a-vis a nuclear test by North Korea), it is empowered under the Charter to order mandatory measures, under Articles 41-42, that must be complied with by all Member States of the United Nations, under Article 25 of the UN Charter. [Emphasis added].
Given the clear conclusion [that North Korea represents a "threat to international peace and security"] in the 6 October 2006 Security Council Presidential Statement, expect the Council to at the very least impose some form of economic sanctions on North Korea. ... North Korea has previously announced that the impostition of sanctions would be considered an "act of war" against the North, thus making this latest development far from the last chapter in what has been and will be a dangerous confrontation involving the deadliest weapons on earth.
Riddle me this Batman: Le Mon argues that the UN is that agent best positioned to react effectively to the North Korean nuclear test. But at the end of that argument, Le Mon leaves readers with the promise of, "at the very least," more economic sanctions. What flaw may be found in Le Mon's position is that economic sanctions are proven to be ineffective reactions to North Korean antagonism. It will take more than the promise of continuing a failed plan of attack to convince those familiar with pertinent recent history.
Since coming to power almost 6 years ago, the Bush Administration has adopted a hardline position against North Korea, manifesting in refusals to engage North Korea one-on-one, as well as increasing economic isolation of the impoverished country. At every turn, Kim has responded to Bush's instigations negatively:
- Upon being included in Bush's infamous "axis of evil," North Korea threatened, "The option to 'strike' impudently advocated by the U.S. is not its monopoly.";
- In 2003, the US publicly accused North Korea of a discreet nuclear program, allegedly placing the US in violation of a US-North Korean pact, and the North answered the accusations by dropping out of the Nuclear Non-Proliferation Treaty;
- The US's more recent freezing of North Korean funds, especially at banks in Macao, was met with North Korea's refusal to attend further six-party talks, followed by the North's defiant test-firing of long-range missiles.
Thus, it is clear that playing hardball with North Korea, sans the capability or willingness to back it up with actions more coercive than sanctions, is a losing strategy -- one that must be abandoned.
Furthermore, sanctions are a paradigmatically careless response to North Korean antagonism. The major fear of critical observers is not that North Korea would employ nuclear weapons. The greatest danger in their having nukes is proliferation. As noted in Passport, when asked whether the North might refrain from selling nuclear technology to a terrorist group such as al-Qaeda, North Korean expert Marcus Noland of the Institute for International Economics replied, "I wouldn't bet Chicago on it." This danger would only be amplified by further sanctions. The desperately cash-strapped Stalinist state is widely regarded as willing to sell anything and everything. In fact, North Korea's rackets in drug-trafficking and counterfeiting other nations' currencies are a major source of income for the Kim Jong Il's regime. So, taking away further sources of income would not only justify the North's engagement in nuclear proliferation, but it may force them to do so in order to maintain stability.
Summarily, if the UN's sole response is to keep walking down the path of economic sanctions -- the path that has brought the world a nuclear North Korea -- it will illustrate not merely the UN's obsolescence, but it will be adopting a role that is a "threat to international peace and security." Such a detrimental role played by the UN presents the ironic question of whether it could, in the words of Mr. Le Mon, "order mandatory measures, under Articles 41-42, [such as dissolution of itself] that must be complied with by all Member States of the United Nations, under Article 25 of the UN Charter." Though apparently a proposition made in jest, if the UN only furthers economic sanctioning of North Korea, it seems that the world would be best served by dissolution of that gravely irresponsible organization.
[This post was modified after publication to correct Mr. Le Mon's title at Opinio Juris. I apologize for the original mistake.]