Legal Framework for Retaliation against North Korea’s Rocket Launch

Ashley Harshaw, Vol. 37 Associate Editor

Following North Korea’s long-range rocket launch on February 7, 2016, South Korea and the United States are urging for strong sanctions against the Kim Jong-un regime. But, it is unclear what kinds of sanctions will be effective in influencing North Korea’s behavior. The successful functioning of the rule of international law depends on the consent of states. Since North Korea seeks to remove itself from the limitations of international legal norms, what is the legal framework in which other countries may retaliate against North Korea? South Korea and the U.S. maintain that North Korea’s rocket launch violated international law, as set out in various United Nations Security Council resolutions banning North Korea from rocket launches using ballistic missile technology.[1] North Korea insists that the launch was merely a satellite for peaceful purposes.[2] A series of retaliatory actions has already taken place between the rival Koreas and the U.S. Shortly after the February 7 launch, South Korea suspended operations at the Kaesong industrial zone, a jointly run factory park located in North Korea, as punishment.[3] In retaliation, North Korea expelled all South Korean workers from Kaesong, froze the assets of South Korean firms, and put the area under military control.[4] South Korea further justifies closure of the Kaesong park with allegations that North Korea has been channeling the majority of money it has received for park workers into its weapons program.[5] Kaesong was one of the last points of cooperation between the Koreas. Though Kaesong employed tens of thousands of North Korean workers, because China accounts for the vast majority of North Korea’s trade,[6] South Korea’s economic retaliation most likely will not greatly influence North Korea’s policymaking. Additionally, South Korea and the U.S. are potentially planning the deployment of an advanced U.S. missile defense system – the terminal high-altitude area defense (THAAD) anti-ballistic missile system – on South Korean territory. China staunchly opposes this course of action, fearing what it views as too much U.S. influence in Southeast Asia.[7] China urges the U.S. and South Korea to engage in more negotiations with North Korea regarding its weapons program. However, because China is the main provider of aid and earnings to North Korea, it would seem that only China holds any bargaining chips in the negotiation context. The growing sentiment in South Korea and the U.S., even among the Chinese public, is that negotiation without more biting sanctions will not accomplish a change in North Korea’s behavior.[8] The U.S. has taken unilateral action in the form of the Senate passing a bill on February 10, 2016 to toughen sanctions on Kim Jong-un’s weapons program. The bill sets out to “blacklist those helping North Korea in its nuclear and missile programs, human rights abuses, cyberattacks and other crimes, and freeze funds that could help the reclusive country build an atomic arsenal. The bill also prohibits any foreign assistance to countries that provide lethal military equipment to North Korea.”[9] The legislation uses targeted sanctions to attempt to isolate the North Korean leader from his cash flows. Though these may be the U.S.’s toughest sanctions towards North Korea yet, broader participation from the international community with multilateral measures will probably be necessary to pressure North Korea into falling in line. The United Nations Security Council issued a statement “signaling its intention to stiffen penalties against North Korea, but without saying how or when.”[10] The key for the Security Council in producing a resolution on the matter is what China, one of the five veto-holding permanent members, will allow in terms of broadening sanctions. Thus far, China has supported only sanctions that limit the transfer or sale of military equipment or other items that would help North Korea’s weapons program.[11] China is opposed to imposing harsher sanctions for fear of turning North Korea into a hostile enemy, resulting in instability on its border.[12] Chapter VII of the Charter of the United Nations lays out the framework within which the Security Council may take enforcement action. The Security Council may determine whether a given situation constitutes a “threat to international peace and security,” and Article 42 of the Charter then enables the Security Council to use force to maintain or restore international peace and security if other measures – such as economic and trade sanctions, arms embargoes, or financial or diplomatic restrictions, as provided for in Article 41 – have proven inadequate.[13]  The North Korea situation could very well qualify as a threat that the Security Council can decide to use force to address, but with China dragging its feet, the Security Council is effectively stuck with merely suggesting lukewarm sanctions. Given that the U.S. and South Korea can only accomplish so much with unilateral economic and diplomatic responses, and any more forceful action might be in violation of international law without clear acts of aggression first by North Korea, perhaps the only further option legally available is that which China encourages – to directly engage with North Korea in negotiations to establish some form of compromise, and to at least move away from the present state of volatility.

[1] Jane Perlez and Choe Sang-Hun, China Struggles for Balance in Response to North Korea’s Boldness, N.Y. Times (Feb. 7, 2016), http://www.nytimes.com/2016/02/08/world/asia/china-struggles-for-balance-in-response-to-north-koreas-boldness.html?ref=world&_r=1. [2] Ben Blanchard, China: North Korea will ‘pay a price’ for its recent behavior, Business Insider (Feb. 15, 2016), http://www.businessinsider.com/r-china-urges-united-states-north-korea-to-hold-direct-talks-2016-2. [3] Id. [4] Selina Sykes, Kim Jong-un says North Korea rocket launch was ‘telling blow’ to West, Express (Feb. 15, 2016), http://www.express.co.uk/news/world/644157/North-Korea-Kim-Jong-un-rocket-launch. [5] North Korea’s Kim orders more rocket launches, CNBC (Feb. 15, 2016), http://www.cnbc.com/2016/02/15/north-koreas-kim-orders-more-rocket-launches.html. [6] Id. [7] Kang Seung-woo, Korea-China relations turning sour, Korea Times (Feb. 16, 2016), http://www.koreatimes.co.kr/www/news/nation/2016/02/116_198058.html. [8] Id.; Perlez and Sang-Hun, supra note 1; Ted Barrett, Senate approves new North Korea sanctions, CNN (Feb. 10, 2016), http://www.cnn.com/2016/02/10/politics/north-korea-sanctions/. [9] Sneha Sankar, US Senate Passes Bill To Impose Stronger Sanctions Against North Korea After Satellite Launch, International Business Times (Feb. 11, 2016), http://www.ibtimes.com/us-senate-passes-bill-impose-stronger-sanctions-against-north-korea-after-satellite-2302784. [10] Perlez and Sang-Hun, supra note 1. [11] Id. [12] According to Shi Yinhong, a professor of international relations at Renmin University. Id. [13] UN Dep’t of Pol. & Security Council Affairs, Repertoire of the Practice of the Security Council. http://www.un.org/en/sc/repertoire/actions.shtml.