Mark HibbsDPRK and Non-Compliance at GC/55

This morning at the 2011 IAEA General Conference in Vienna, the IAEA’s member states passed the resolution GC(55)/L.5, “Implementation of the NPT Safeguards Agreement between the Agency and the DPRK,”  by consensus.

It was sponsored by 44 states. Yeoman’s work was done by Canada, and the original sponsoring group included Australia, Japan, ROK, U.K., and the U.S.

Readers might recall that a year ago, a similar resolution introduced under the same agenda item at GC/54 stirred up a hornet’s nest. That didn’t happen today, for a couple of reasons.

  • First, unlike last year there was no GC/55 resolution tabled on Israeli nuclear capabilities. Last year there was such a resolution, which prompted a food fight between the Arab NAM and Western states over INC, which spilled over into efforts by the U.S. and others in the advanced nuclear states/Western group to pass the DPRK resolution.
  • Second, this year China made sure that the language of Canada’s draft resolution on the DPRK was eviscerated to the point that there wasn’t really too much in the final document for oxygenated NAM states to object to.

The Canadian draft resolution contained language which a few states, and especially China, did firmly contest. China really took a red pencil to the draft. The result was a document which had no references in operative paragraphs to the issue which, in the view of Western states expressing their views in the plenary since Monday, had to a great extent justified the resolution in the first place, namely, the DPRK’s disclosure earlier this year that North Korea had built and apparently was operating a centrifuge uranium enrichment plant at Yongbyon. When all was said and done this morning, perhaps a quarter of the original Canadian draft resolution had been redacted, after Chinese negotiators in Vienna began getting instructions from their colleagues in Beijing who this week were holding talks with North Korean diplomats while the Vienna negotiations on the language of GC(55)/L.5 were underway.

I’m a little ahead of the IAEA conference organization staff at the moment, but the final version of the DPRK resolution should shortly be available here.

As usual for resolutions on touchy safeguards compliance issues like this, the final version of this resolution was a compromise. There were no references in operative paragraphs to the DPRK’s apparent enrichment plant and also no references to continued non-compliance by the DPRK. (That particular issue has to do with how NPT Article X is interpreted, and as it turns out, the IAEA Secretariat has a very different view of the matter than Pyongyang.)

The non-compliance and enrichment issues were instead relegated to the preamble. It recalled that the IAEA Board of Governors had previously found the DPRK in non-compliance, and it also “not[ed] serious concerns” about the DPRK’s “development of enrichment technology.” The preamble also “express[ed] concern regarding the DPRK’s claimed uranium enrichment program and light water reactor construction.”

I pointed out a week ago during the September BOG meeting that several member states had raised some issues with the IAEA Secretariat’s report to the board on the DPRK which was issued on September 2. But it turns out that these questions and objections in fact developed from some very strong opinions that had been expressed inside the boardroom way back in June, when a few states–led primarily by the ROK and supported by Japan–made clear that they wanted a report from the IAEA Secretariat on the nuclear program in the DPRK, regardless of the absence of any IAEA inspection activity in that country for about three years.

China and Russia object in BOG

Specifically, both China and Russia then voiced objections to the board asking Director General Yukiya Amano to prepare a lengthy report on the DPRK’s nuclear program for this month’s board meeting. Nonetheless, and encouraged by both the ROK and Japan, Amano did just that and he filed that DPRK report to the BOG on September 2.

The Chinese and Russian heartburn over the Amano report to the board rippled through at this week’s General Conference.

Accordingly, neither China nor Russia was very happy about certain bits in the draft DPRK resolution. To pass by consensus, the final compromise on this text had to satisfy them, of course, as it had to satisfy the ROK, which had sought firmer language and which was urged by the U.S. to support the final result.

The discontent of Russian and Chinese diplomats was considerable enough (the Russians were a little irritated that they were not credited in the resolution for launching any diplomatic initiatives in the DPRK’s direction)  to warrant concern today that these two states might even try to get the GC, soon after the final text of the resolution was agreed upon, to switch the order of the agenda items, permitting the DPRK resolution to be tabled for approval in the plenary after the NAM group got a chance to raise the temperture by weighing in on other resolutions dear to their heart, such as the resolution on safeguards and another on the Middle East. But that didn’t happen. (When the resolution came to a head in the plenary on Thursday morning, the group of, let’s say, highly motivated NAM states–Algeria, Cuba, Egypt, Iran, Syria, Venezuela–was only warming up in that drafting working group.) So the DPRK resolution was approved in the plenary with only a murmur uttered by Cuba objecting to the slow process on disarmament and referring to the NAM’s quixotic goal of eliminating nuclear weapons by 2025. Some Western delegations breathed a sigh of relief that the Cuban intervention on the floor before the vote did not prompt leading statements by either Russia or China which might have triggered a feeding frenzy in the plenary.

So maybe the drafters of the DPRK resolution knew what they were doing when they decided to close on the final text in an informal group outside the Committee of the Whole. But when we consider the broader issue of NPT non-compliance, we’re looking at Iran down the road, and this modest DPRK resolution, following on the one on Syria in June, could be considered just a little curtain-raiser.


  1. Anon (History)

    do you think the DPRK may be motivated to increase nuclear capability because some nominally “arms control” people are advocating for new capabilities for our weapons?:

    (Do you know if the Jeffrey Lewis who wrote that is related to the one who started this website?)

    As to Dear Leader Kim, and his top military and ideological commanders, I seriously doubt they would be be particularly frightened by the proposed addition to the US nuclear arsenal, since they know their country can be easily obliterated by existing US capabilities, and not necessarily even nuclear, without them being able to hurt the US in any significant way.

    On the contrary, what Mr. Lewis proposes would probably be doing Dear Leader a big favor, as it would be a signal of recognition of his might to the extent that the US is being forced to enter into a nuclear arms race with him.

    This would act as an incentive for him to keep his toys.

    Ideas about combating proliferation with new and better nuclear weapons were en vogue when Mr. Lewis was in his diapers — these ideas are tantamount to attempting to impose unilateral nuclear disarmament on other countries by strengthening one’s own nuclear forces.

    A note to Mr. Lewis: It never worked in the past.

    I would be curious as to Mark’s opinion on the article.

    • mark (History)

      Anon, I have no expertise to address the strategic question whether a technical modification of the B83 warhead would have an impact on Kim’s thinking. What I can impart is that people I know who have left the US executive branch during the last half-decade or so told me as soon as they left the dark side that in their view the US contributed to escalation of this crisis by failing to recognize and address North Korea’s fundamental post-Cold War security dilemma. In the view of some of these people, the Agreed Framework didn’t represent a fundamental change in US policy and was therefore doomed to failure because it did not include a security guarantee component for the DPRK.

  2. kme (History)

    I would be interested in hearing more about the dispute regarding the interpretation of Article X.

  3. Harry Lime (History)

    I too would be interested in understanding what’s behind the comment in relation to Article X of the NPT that “the IAEA Secretariat has a very different view of the matter than Pyongyang”.

    The public face of the collective Secretariat as expressed in reports by the DG may show them sat firmly on the fence when it comes to the DPRK’s status re the NPT. All the Secretariat is saying on this is that it’s not for them to say. Well, I expect that Pyongyang would certainly agree with that and the Secretariat’s neutrality hardly suggests a position diametrically opposed to that of Pyongyang. I could go further and say that, as individuals, the Secretariat’s view may be even closer to that of Pyongyang.

    Interpretation of Article X may indeed be one of the areas where there is least distance between the views of the Secretariat and Pyongyang. Any dispute on the DPRK’s status re the NPT is not wit the Secretariat but with some NPT signatories – and not necessarily the more obvious suspects.

    • mark (History)

      As I have pointed out in a previous post this month, officials from member states have raised questions about how the Secretariat treated third-party information in the case of the last report to the BOG on the DPRK as compared to other cases (the case of Israel was implied whether or not it was specifically mentioned). To some observers the citation of this information by the IAEA in the DPRK report appeared to represent a double standard. I attended a meeting at the IAEA last week during which an official from the IAEA secretariat provided an explanation for the difference. The answer was brief but it strongly implied that from the IAEA’s point of view it was legitimate for the IAEA to cite that information (on uranium enrichment activities in the DPRK) because, unlike the case of Israel, where the IAEA has no rights following from a bilateral CSA, for the DPRK the NPT safeguards agreement Infcirc-403 is still in force, regardless of any statements by the DPRK about withdrawl from the NPT. To my understanding this is not the position taken by the DPRK.

    • masoud (History)


      Did your contact in the Secretariat offer any legal justification for his position? Both standard Safeguards and the AP explicitly state that the agreements shall be in force for as long as the NPT remains in force. Did your contact indicate whether he believed that the NPT still remains in force in North Korea? Did he indicate that the Secretariat will be providing an official position on the discrepancy?

      I’d bet your friend was from a highly politicized department such as Safeguards.

    • mark (History)

      Masoud, the IAEA official who made that remark is very senior and that official’s qualifications are impeccable. I won’t say which department. Unmistakably the view was expressed that there is still an umbillical connection between the DPRK and the NPT and the safeguards agreement which justified Amano citing Hecker’s data (as opposed to in the case of third-party information being cited in the Arab’s request for information on Israel). If it is as you say that the AP and the NPT states that the SG agreement is in force as long as the NPT is in force, that would imply that in the IAEA’s view the DPRK is still a party to the NPT, regardless of assertions of the DPRK that it has withdrawn from the treaty.

    • masoud (History)


      I wouldn’t doubt you when you talk about the seniority of your contact, unfortunately that’s not exactly the same thing as saying he is unpoliticized.

      See for instance, some of the plainly stated views of the aptly named Oili Heinonen. I’m sure Nackaerts is no better. It must be impossible to get any kind of a job approaching mid-ranking in the Safeguards department unless certain parties are absolutely sure you are reliable. However, I’m not sure that’s necessarily the case for all Departments of the IAEA, which is why I asked.

      “If it is as you say that the AP and the NPT states that the SG agreement is in force as long as the NPT is in force, that would imply that in the IAEA’s view the DPRK is still a party to the NPT, regardless of assertions of the DPRK that it has withdrawn from the treaty.”

      That sounds like it makes sense, but it is nearly impossible to discern any kind of logic coming from the DG’s office on these types of matters, and silly to expect any. Actually, I find the implication that Amano has the right to re-write the NPT at will, is even more incredible that idea that Amano is *merely* rewriting the safeguards agreements of specific nations at will. But then again, I don’t think any normal person can climb into the head of a creature like Amano and discern what he finds reasonable.

    • Anon (History)

      Unfortunately, it is my experience that seniority correlates (as opposed to anti-correlates) with politicization at the IAEA. Possibly the most politicized person at the IAEA is the DG himself. e.g.:

      see also multiple stories on politicization at the IAEA by the more independent of the of the press such as Christian Science Monitor.

    • anon (History)

      I think there is a misunderstanding in Mark’s comment. North Korea has another safeguards agreement, INFCIRC/252, which covers the Soviet-supplied IRT reactor at Yongbyon. This agreement remains in force, but was suspended when North Korea’s comprehensive safeguards agreement (INFCIRC/403) entered into force in 1992. Such suspension is required by Article 23 of the CSA, but should lapse if and when the CSA terminates.

      I suspect the senior IAEA official was referring to the earlier agreement.

    • mark (History)

      Anon, I checked on this. I was told that that Inf/252 is a 66-type agreement and therefore was not the explicit point of reference by the Secretariat official since that official specifically referred to Pyongyang’s NPT status in explaining why the IAEA included the Hecker information in the Sept. 2 DPRK safeguards report to the board. Apparently it is however a very contentious issue. One former DDG for safeguards has told me that in his view, that Infcirc-66 agreement is relevant since it remains in force, and another ex-DDG for safeguards has told me that, in his view, it isn’t relevant since it isn’t an NPT safeguards agreement.

      As I suggested in previous comments to this post, most welcome would be a request from one or more member states to the Secretariat for its views on this issue, especially since we are moving toward a renewed discussion in the board of non-compliance and Iran in about two months.

      There is a lot of lipservice paid to the need for transparency in Vienna, and in this case the Secretariat would do member states and the rest of us a service by providing some of it here.

  4. Anon (History)

    Sorry, I thought NK was no longer in the NPT (?)

    Is it required that they let in inspectors?


    “In allowing third-party information into the report, the agency could expose itself to inquiries regarding why it does not issue reports on other nations that do not permit IAEA inspections of all their atomic sites — such as nuclear-armed states India, Israel and Pakistan. The agency has rejected on multiple occasions demands by Arab nations that it study Israel’s widely assumed nuclear weapons program.

    Agency head Yukiya Amano has urged his inspectorate to enhance use of political measures against member states that are seen as breaching nonproliferation regulations…”

    Could you help us interpret these “political measures” and whether they are in tune with the IAEA mandate?

    • mark (History)

      Anon, the reference to “political measures” is not to my post but to an unattributed statement made by GSN in the above report you provided the link to. I would likewise be interested in getting more on this from GSN. I will ping GSN editors and refer them to this post and to these comments.

  5. masoud (History)

    Some have argued in these pages(Jeffery, I’m looking at you) that the reason Amano refused to carry out instruction issued to him by the NPT Review conference in preparing a report on the Zionist Nuclear Arsenal, were concerns over process. They argued that since the Israel has refused to ratify the NPT, that Amano could not possibly obtain any information on the hundreds of nuclear armaments within that state. My question is how these commentators square this with Amano’s obsession with Iran’s ‘Alleged Studies’ and his lengthy reports on the DPRK, which like Israel, is non-member of the NPT, that pretend Safeguards agreements are somehow still in force, for the exclusive reason to have something to prattle on about in.

    Why doesn’t Amano, for instance, accept ‘outside information’ about Israels’ arsenal from the many member states willing to provide it, and then order Israel to ratify the relevant treaties, as he has demanded Iran do, in order to disprove the accusations? Why doesn’t he just construct out of thin air arbitrary legal standards that should apply in Israel’s case? Why is a request from one or two member states reason enough for Amano to prepare a report on DPRK, but a unanimous request from all 180 state parties to the NPT not reason enough to prepare a similar report on Israel?

    Can’t we just admit to ourselves that IAEA scrutiny has nothing to do with either non-proliferation concerns or due legal processes, and that such scrutiny is purely a function of how much a particular nation resists North American/Western European hegemony?

    • Anon (History)

      in fact UN Security Council resolution 487 calls on Israel to place its facilities under IAEA safeguards:

      “1. Strongly condemns the military attack by Israel in clear violation of the Charter of the United Nations and the norms of international conduct;

      2. Calls upon Israel to refrain in the future from any such acts or threats thereof;

      3. Further considers that the said attack constitutes a serious threat to the entire IAEA safeguards regime which is the foundation of the non-proliferation Treaty;

      4. Fully recognises the inalienable sovereign right of Iraq, and all other States, especially the developing countries, to establish programmes of technological and nuclear development to develop their economy and industry for peaceful purposes in accordance with their present and future needs and consistent with the internationally accepted objectives of preventing nuclear-weapons proliferation;

      5. Calls upon Israel urgently to place its nuclear facilities under IAEA safeguards;

      6. Considers that Iraq is entitled to appropriate redress for the destruction it has suffered, responsibility for which has been acknowledged by Israel;

      7. Requests the Secretary-General to keep the Security Council regularly informed of the implementation of this resolution. ”

      Of course Israel violated #2 by attacking the Syrian facility recently.

  6. Anon (History)

    If an “umbilical” relationship is alleged to still exist between the IAEA and DPRK even after DPRK’s withdrawal from the NPT over supreme national interests (see above), could anyone speak to the possibility that such an umbilical relationship may similarly stop the US from testing warheads were it to want to exit a future CTBT that it had ratified, based upon supreme national interests?

    Who decides when such a imaginary umbilical exists? Do we need special Fukushima-irradiated-Amano-glasses to see it?

    • mark (History)

      Anon, to your last question: I would suggest you ask the DGOP after stopping by OLA. Don’t ask the Department of Public Information because while these folks are ready to give you the answers to questions on straightforward issues, on matters where the Secretariat has to make a political judgment there is a good chance that its axiomatic response will be (depending on the context) a.) “The IAEA is a technical agency” [deemed appropriate when DGOP wants to convey that the Secretariat is non-partisan or that there is no politics] or b.) “The agency is acting on behalf of its member states,” [appropriate when the Secretariat is acting in a way which is consistent with the national interest/s of one or more member states] not forgetting that c.) the US pays 25% of the regular budget, d.) Japan pays 18%, and e.) DG Amano since 2009 has been actively courting the NAM.

  7. Dan Joyner (History)

    Im in a bit of a pickle here. Mark Hibbs has brought up some very interesting questions of law, including the interpretation of NPT Article X question.

    I would normally jump in at this point and try to provide some understanding to readers regarding the interpretation of Article X. This indeed has been flagged by a number of readers as a point of particular interest.

    However, I have been informed by the ACW administration that the site does not want to encourage discussion of political and legal questions. Rather, it would prefer that discussion remain limited to technical questions. Again, this does not seem to apply to Mark’s own posts, which – again I think most interestingly – do bring up political and legal questions ripe for discussion.

    This all may come as a surprise to other readers of this blog, as well as to Mark, as it did to me.

    But I will try to be respectfull of the wishes of the site administration, and will regretfully refrain from commenting on legal questions here.

    I am considering starting my own blog for the purpose of providing what I have always hoped is useful legal commentary on arms control issues.
    Dan Joyner

    • mark (History)

      Dan, I would strongly encourage you to weigh in on this–as I have argued both on the Carnegie site and here since June, we’re moving toward a discussion of non-compliance on Iran at the IAEA in a couple of months so this is in fact extremely relevant. I’ve heard from people in Vienna–Secretariat and member states–the last 2 weeks while I have been down there. Believe me, they are reading this blog on this legal stuff with great interest!

  8. Anon (History)

    FWIW, I’d be very interested to hear your informed views on the subject.

    I may be wrong but my understanding is that ACW works as a sum of blogs by the various people: Jeffrey, Mark, Krepon etc. and that each sub-blog has some editorial freedom over the content of posts.

    I think Mark has been, to his great credit, very open in discussing all aspects of arms control: technical, legal, political. There is no need, in my view, to castrate the discussion now. Plus I have already said very political things on these pages so I do not see the trouble in your discussing legal or political issues: if you say something incorrect or inappropriate Mark can surely later delete your post. So, please, let’s discuss.

    Surely, we cannot leave politics out of this, when this is going on at the IAEA:

    And when Jeffrey himself had a post about John Carlson’s call to political arms against Iran.

  9. Dan Joyner (History)

    Since Mark has encouraged me to comment, I will do so. The best account of the legal arguments surrounding Article X of the NPT, and the particular case of NK’s withdrawal, is to be found in the following article by Professor Masahiko Asada of Kyoto University:

    Masahiko Asada, Arms Control Law in Crisis? A Study of the North Korean Nuclear Issue, JOURNAL OF CONFLICT AND SECURITY LAW, Vol. 9, No. 3, Pgs. 331-355 (2004)

    I would attach the file if I could, but I cant. I know some may have difficulty accessing that article, but if you can access it, it provides an overview of the legal arguments.

    In very brief summary, Professor Asada gives a review of the legal positions of NK and of the IAEA Office of Legal Affairs with regard to the effectiveness of NK’s withdrawal from the NPT, and provides a rigorous analysis of these positions. In the end, he finds that the best legal conclusion is that NK did withdraw from the NPT on April 10, 2003. I agree with this conclusion. The text of Article X clearly provides for a right of unilateral withdrawal from the NPT, and allows the withdrawing state to make its own subjective determination of the “extraordinary events” which compel it to withdraw. That is the end of the first sentence, and sets out the right of states parties to withdraw. The next two sentences on notification and communication of those reasons for withdrawal, should not be seen as conditions precedent for withdrawal, but as minor procedural rules which, if breached, may give rise to a remedy, but which will not prevent a withdrawal from being effective.

    There is a separate question regarding the implications of this withdrawal for NK’s safeguards agreement with the IAEA. Article 26 of the DPRK’s safeguards agreement with the IAEA provides, “This Agreement shall remain in force as long as the Democratic People’s Republic of Korea is party to the Treaty [the NPT].” I read this to mean that once withdrawal from the NPT is effective, which again in the DPRK’s case was April 2003, the safeguards agreement between NK and the IAEA by its own terms ceases to be in force between the parties. Thus, I think the best legal answer is that NK is not currently a party to the NPT, and is not currently a party to a safeguards agreement with the IAEA.

    Thus, any IAEA statements regarding noncompliance of NK with either its NPT or safeguards agreement obligations are simply moot.
    Dan Joyner

    • masoud (History)

      Dear Dan,

      Thanks for posting this. ACW is an incredible resource, but I think there is a lot of merit in sound legal analysis of nuclear proliferation issues(not that I feel such matters can be separated from policy discussions), and I think you would reach a large audience even if you did have start out on your own.


    • Wfr (History)

      Doesn’t para 3 of the IAEA report infer that the dprk’s infcirc66 agreement would be in force again once the dark leaves the npt?

    • mark (History)

      Dan, that’s very interesting indeed, because last week the IAEA Secretariat official clearly referenced the DPRK’s status in the NPT as justifying Amano having included unverified statments provided by Hecker in his report to the BOG on Sept. 2.

      Has the IAEA anywhere gone on record explaining its position on this? There are some media references to previous DG statements but I have not seen a statement of its legal view on this, neither from OLA nor from DGOP or its predecessor/s under MEB.

      If the DPRK is as you say out of the NPT, and, further, that Infcirc-403 is therefore not in force, doesn’t that imply in your view that the BOG’s reference in the preambular paragraphs of GC(55)/L.5 (non-compliance by the DPRK with Infcirc-403) is moot and a non sequitur?

      The fact that the GC however passed this resolution by consensus last Thursday however would suggest that 151 member states (now actually 153 I guess adding Lao PR and Dominican Republic) take the view for what it’s worth that the DPRK is out of compliance with a safeguards agreement which is still in force?

      Wouldn’t it be proper for a member state (China? Russia? following their objections in the BOG to the ROK/Japan request for a comprehensive report on the DPRK from the Secretariat)to request a normative clarification from the Secretariat on this position if there is not a consensus that the DPRK safeguards agreement were in force and–following from the text of Article X–that the DPRK is still in the NPT?

      A decision was made by the BOG not to table a DPRK resolution there but instead leave it to the GC. I’ve heard various reasons given for this. One is that non-compliance resolutions on three states in a row during three consecutive BOG meetings during 2011 would be too much for the NAM to stomach. There may be other rationales…

    • anon (History)

      I notice that the IAEA still has not posted the resolutions adopted at last week’s General Conference, so I’m guessing what may be meant by non-compliance in the DPRK resolution.

      I think it is worth pointing out that in resolution 1718 (resolution 1874 has nearly identical text) the UN Security Council: “Decide[d] that the DPRK shall abandon all nuclear weapons and existing nuclear programmes in a complete, verifiable and irreversible manner, shall act strictly in accordance with the obligations applicable to parties under the Treaty on the Non-Proliferation of Nuclear Weapons and the terms and conditions of its International Atomic Energy Agency (IAEA) Safeguards Agreement (IAEA INFCIRC/403) and shall provide the IAEA transparency measures extending beyond these requirements, including such access to individuals, documentation, equipments and facilities as may be required and deemed necessary by the IAEA.”

      There is also the question Dan Joyner raises of whether North Korea’s non-compliance with the NPT is “moot” since its withdrawal became effective. This was addressed at the 2010 NPT Review Conference. This appears in the (non-consensus) review portion of the Final Document:

      “119. The Conference notes that numerous States recognize that the right of
      withdrawal is established in the provisions of the Treaty. There were divergent views regarding its interpretation with respect to other relevant international law. The Conference notes that many States underscore that under international law a withdrawing party is still responsible for violations of the Treaty committed prior to its withdrawal, and that if done in accordance with the provisions of the Treaty, such withdrawal would not affect any right, obligation or legal situation between the withdrawing State and each of the other States parties created through the execution of the Treaty prior to withdrawal, including those related to the required IAEA safeguards.”

      This is rather convoluted, but it expresses the view of many NPT parties that states cannot escape the consequences of NPT or IAEA safeguards violations they committed while parties by withdrawing from the NPT.

  10. Wfr (History)

    Having skimmed this thread I fail to see reference to footnote 18 of the IAEA report Where the current position visavis the dprk ‘s npt status is set out. Sorry to be pedantic but reading the original document can sometimes help a discussion !

  11. Dan Joyner (History)

    I do think that any language in the BOG document about non-compliance by NK with its safeguards agreement is moot.

    Actually, Footnote 18 of this document is the most comprehensive statement that I’ve seen from the IAEA officially discussing the issue of NPT Article X and NK’s withdrawal. Its very interesting because it doesnt take a firm position in itself. It equivocates and says basically that the agency doesnt know for sure whether or not NK is still a party to the NPT or to its SA. In the language of the law, we call this equivocation a non liquet, and it is to be avoided.

    I can only imagine that there is politics behind this equivocation. I dont doubt that the secretariat is getting legal advice from Laura Rockwood saying that NK is still an NPT and SA party because of alleged procedural defects with NK’s withdrawal. As I said above, these arguments are not persuasive, but they are probably enough of a pretext to allow the secretariat to make the statement that they arent sure about the legal status. So because they are unsure, they take the position that they need to continue full steam ahead with noncompliance reports. This seems in the end a bit ridiculous to me, and out of touch with the reality on the ground which is clearly that NK has publicly withdrawn from the NPT and wants nothing to do with the IAEA. The secretariat’s and the BOG’s insistence on continuing this charade is surely just an effort to satisfy the US and other Western powers who want the NK issue to continue to be on the international diplomatic radar screen, and they dont mind bending the law to get what they want.

    One interesting question is what entity could actually give an authoritative answer to the legal questions here. It is certainly not the IAEA OLA. They have no jurisdiction over the NPT per se, and they are the other treaty party to the SA, so have no particular remit of authority to judge NK’s withdrawal. Really the only entity capable of giving such an authoritative judgment is the International Court of Justice. The best way to proceed to get clarity on this issue would be for the UN General Assembly to refer this question to the ICJ as a request for an advisory opinion. The ICJ could then render its decision and it would clarify the legal situation for the IAEA.

    To Anon – you are certainly correct in citing to that language from the most recent RevCon. But note that it says states are still liable for breaches committed before withdrawal. That isnt a revolutionary statement. It complies with the basic rules of state responsibility under international law. But it is simply not the principle on point for these facts. The IAEA BOG isnt criticizing NK for its NPT or SA breaches before it withdrew. Its saying that NK is in CURRENT noncompliance with its SA. The principle you cite simply doesnt support this current criticism.
    Dan Joyner

    • masoud (History)


      Can you expand on the ICJ’s jurisdiction over here? What happens if the DPRK takes the position that the ICJ has no jurisdiction in this matter?

    • kme (History)

      I strongly suspect that none of the parties involved would welcome such a request being made of the ICJ, due to the possibility of a ruling being made that isn’t in their favour. The present uncertainty suits everybody just fine.

  12. Dan Joyner (History)

    I dont see why the DPRK would argue that the ICJ lacks jurisdiction. The ICJ is going to rule in their favor – that they are not bound by either the NPT or the IAEA SA.

    The great thing about the ICJ’s advisory jurisdiction is that they dont need the consent of any particular state to render a judgment under this head of jurisdiction, unlike under their contentious jurisdiction powers. Thats why they were able to render an advisory opinion on the legality of the Israeli security barrier in 2004. Israel would never have consented to a contentious case on this matter.

    The UN General Assembly could refer the question of NK’s status under the NPT and IAEA SA to the ICJ just as it did with the Israeli wall question. The only barrier is getting political momentum in the UNGA to do this.

    I have long been on record as a proponent of using the ICJ’s advisory jurisdiction to clear up a number of nonproliferation questions – like the noncompliance of the NWS with NPT Article VI. This too could be the subject of an ICJ advisory opinion if the UNGA referred it to the court.
    Dan Joyner