The North-South Korea issue and possible scenarios
(Editor’s note: Sen Miriam Defensor Santiago issued this press statement on Tuesday, April 9. Santiago is an expert in constitutional and international law. In 2011, she was named a judge of the International Criminal Court and is waiting to assume the post.)
For the Philippines, the issue is not crisis prevention, but risk management. Observers have noted that recently, “prospects of controlling the nuclear threat have deteriorated.” It now appears that the nuclear taboo has been compromised, because certain states openly contemplate first strike scenarios, and have developed smaller nuclear arms and strategies relating to them.
Should armed conflict arise, the Philippines should be ready with analyses of certain laws applicable in armed conflict, notably human rights conventions, the Genocide Convention, international humanitarian law, the principle of neutrality, and environmental law.
As a non-nuclear-weapon state, the Philippines would still suffer severe damage from nuclear warfare: either direct damage by the blast effects; or indirect damage by local or long-distance fallout.
Hence, the Philippines should clarify that as with other rules of humanitarian law, the duty to respect the integrity of neutral states applies to all types of warfare. North Korea would fall under the duty to justify the use of particularly destructive weapons, if they seriously affect neutral countries like the Philippines. The consequences entailed by unjustified use will be governed by the law of state responsibility.
In addition to the principle of neutrality, the Philippines is also protected by the principles of environmental law, notably the 1978 ENMOD Convention (Convention on the prohibition of military or any other hostile use of environmental modification techniques). This convention prohibits the use of weapons which have “widespread, long-lasting, or severe effects” on the environment.
Because nuclear weapons produce blast effect and release a fireball of extremely high temperature, Philippine environment could be degraded for generations. In our country, residual radiation could cause severe damage to human health, such a leukemia, congenital defects, and mental retardation. A “nuclear winter” would create dust clouds absorbing the sunlight, dropping temperatures, and damaging agriculture in wide areas of our country.
Insufficient rules on nuke weapons
It will surprise many Filipinos that in effect, there is no treaty which provides the rules expressly governing the use of nuclear weapons in combat.
In the 1986 case of Nicaragua v. United States, the International Court of Justice (ICJ) ruled: “In international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments in a sovereign State can be limited.” Present treaties deal only with manufacturing, testing, possession, proliferation, deployment, limitation, and reduction of nuclear arms.
Furthermore, like treaty law, customary international law does not limit the armaments levels of a state. It is true that the UN General Assembly has repeatedly condemned nuclear arms in resolutions passed, for example in 1961 and 1972. But apparently, they are not sufficient to constitute customary international law, because these resolutions were not adopted unanimously. On the contrary, many states voted against or abstained from these resolutions.
Authorities support the statement that: “the practice of deterrence and the accompanying opinio juris of a weapon-possessing state show that a considerable part of the state community does not consider atomic warfare as illegal per se.” (Opinio juris refers to the belief of states that international law – rather than moral obligation – mandates the conduct or practice which thus becomes a rule of customary international law.)
There are a number of possible scenarios.
Before, the US followed a strategy of massive retaliation, but now the US follows the doctrine of flexible response, which started as a pure strategy of deterrence. Today the US strategy is focused on military objectives, sometimes known as counter-force strikes. The American strategies imply that nuclear warfare could be limited and survived.
During the Cold War, the US followed the doctrine of mutually assured destruction (MAD), which states that the US and an enemy like Russia, will avoid any outcome of a full-scale nuclear war because of its destructive consequences. But after the end of the Cold War, both Russia and the United States issued a declaration of mutual deterrence.
Thus, after 1990, both states as well as others started to decommission and destroy nuclear arsenals. In parallel, the nuclear threat in South Asia is represented by India and Pakistan, each of which possesses nuclear weapons. However, both states say that they accept the concept of minimum credible deterrence.
North Korea and nuclear treaties
According to the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) there are two categories of states: nuclear-weapon states; and non-nuclear weapon states. The NPT defines the five nuclear-weapon states as those which have manufactured or exploded a nuclear device prior to Jan 1, 1967. The five states are: China, France, Russia, the United Kingdom, and the United States. However, several states did not ratify the treaty, notably including India, Pakistan and Israel.
In 2003, North Korea announced the termination of its nuclear weapons program. But observers say that North Korea has failed to comply with conditions for withdrawal. If so, North Korea is still bound by its treaty obligations. In 2006, the UN Security Council demanded that North Korea “immediately retract its announcement of withdrawal from the treaty and act strictly in accordance with the NPT.”
Nuclear testing is restricted by a set of rules, notably including the 1963 treaty banning nuclear weapon test in the atmosphere, outer space and under water (aka Partial Test Ban Treaty or PTBT). North Korea has not ratified this treaty.
There is a 1996 Comprehensive Nuclear-Test-Ban Treaty (CNTBT), but it has not yet entered into force because it has not been ratified by 44 states possessing nuclear power reactors. The CNTBT prohibits any test or other nuclear explosion at any place under control by the states parties. North Korea, just like the US, has not acceded to this treaty.
Because the CNTBT has not yet entered into force, the subject of nuclear testing is governed at present by the international customary law of state responsibility. Under the famous 1949 Corfu Channel case, every state has a duty: “not to allow knowingly its territory to be used for acts contrary to the rights of other States.”
In 1998, North Korea tested an intermediate-range ballistic missile. In 2006, North Korea conducted underground testing of a nuclear device. Authorities have observed: “The low yield of the explosion reached doubts as to the operational capability of the weapon developed; additionally, it is questionable whether a warhead could be constructed that fits onto a delivery system at North Korea’s disposal.” In 2006, the UN Security Council condemned the nuclear test.
In 2007, North Korea participated in talks among 6 parties which included China, Japan, South Korea, Russia, and the United States. The talks ended with a joint action plan for disabling and eliminating the country’s nuclear weapons infrastructure. But critics doubt whether implementation has progressed because verification was not assured by the end of 2008.
Prohibition vs unnecessary suffering
As part of the regime of arms control, international law prohibits unnecessary suffering. The prohibition against unnecessary suffering depends upon two factors: military necessity; and proportionality.
Should North Korea use the atomic bomb, it will become liable in international law under the principle of states responsibility and international humanitarian law. If the North Korea nuclear strike hits Philippine civilian population and cannot be justified, the nuclear strike might constitute grave breach of humanitarian law.
Hence, under international law, North Korea would assume the duty to pay reparations, which can amount to extreme proportions. In addition, use of the atomic bomb may qualify as war crimes and as crimes against humanity, under the Rome Statute of the International Criminal Court.
Finally, some raise the question of whether the US or its allies could launch preemptive strikes against North Korea, under the doctrine of self-defense. Such preemptive strikes, if taken unilaterally without authorization by the UN Security Council, would be unlawful.
In conclusion, in today’s world, as opposed to conventional weapons, there are 3 categories of weapons of mass destruction. These WMDs are: nuclear weapons; biological weapons; and chemical weapons. Specific rules as to the actual use of WMDs do not exist. But they will certainly produce devastating effects and many, many questions in international law on the use of force and conduct in armed conflict. - Rappler.com
Reference, according to Santiago: Max Planck Encyclopedia of Public International Law, 2012, “Nuclear Weapons and Warfare” by Stefan Kadelbach