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One curious feature of North Korean diplomacy is a kind of hyper-legalism. A gross violator of a number of its international obligations, North Korea frequently issues arcane legal defenses of its derogations or raises abstruse legal objections to measures taken against it. Last week, the North Korean mission released a curious missive containing a statement from the Korean Jurists Committee outlining why the most recent sanctions resolution (UNSC 2371) is in fact illegal. The syllogism goes like this:
- Art. 1 para. 2 of the International Covenant on Economic, Social and Cultural Rights states (in full): “All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence (emphasis added).”
- The DPRK is a signatory to this convention; the United States is a signatory but it was never ratified by the Senate. (This statement has been corrected based on comments from David Hawk and Roberta Cohen below.) - The stipulation in the last sentence has the status of a peremptory norm or jus cogens, a principle of international law that is so fundamental that it permits of no derogation.
- Under Article 53 of the Vienna Convention on the Law of Treaties, any treaty that conflicts with a peremptory norm is void.
- Both UNSC 2371 and perhaps all prior UNSC resolutions since 2006 that have imposed sanctions are null and void. QED.
I am not the person to dive into the international law of these claims, which is a jumble; insights are particularly welcome in the comments section below. There is scant agreement on what norms really fall into the jus cogens category. To give you some sense, though, they are likely to include things as fundamental as sovereignty itself, the prohibition on the waging of offensive war, genocide, crimes against humanity, and torture; the irony of North Korea seeking to add to this list needs little comment. Apparently, the jus cogens argument was not prominent in the debate over UNSC-mandated sanctions on Iraq, one of the stricter sanctions resolutions passed to date.
The more serious issue is that UNSC powers are pretty expansive, in contrast to those of the UN General Assembly which are largely hortatory (For a deep dive on the debate, see the point-counterpoint I ran between Jared Genser and Dan Joyner on the issue; that debate centered on whether the UNSC had the power to curtail any rights that North Korea might enjoy under the space treaty). But a plain reading of Chapter VII, Articles 39-42 suggests that the UNSC has pretty broad powers to enforce its decisions, on the assumption that it would only be able to do so under the condition of P5 assent. These powers include not only the authorization of force (Article 42) but a variety of other measures contained in Article 41 (“These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”) I am pretty hard pressed to understand why the sanctions are illegal.
But the most interesting aspect of the statement is its tacit acknowledgement that the sanctions are about to bite after years of built-in breathing room. The statement argues that 2371 is “aimed to completely prevent the DPRK’s economic development and improvement of the people’s living standard” and is therefore in violation of a peremptory norm. We are still waiting for a UNSC resolution that imposes any observable material effect. The fact that North Korea thinks that 2371 might be is revealing.
(Thanks to Mark Lagon for his insights on the issue).
