Tensions have been raised again this month on the Korean peninsula. Despite the report that U.N. Secretary General Ban Ki Moon’s plan to visit North Korea[1], it has declared a no-sail zone off its east coast in preparation for a possible missile launch.[2] North Korea, which has been at war with South Korea for nearly 70 years, has been unpredictable, occasionally causing South Korea’s army to be on alert for a possible invasion.
North Korea remains as the last Stalinist state in the world. Ever since the Korean War, the United States and its allies have maintained economic sanctions against North Korea and maintained nearly 37,000 U.S. troops in South Korea because of its attempt to develop a nuclear weapon and long-range ballistic missiles system that threatened global security. In 1994, after Non-Proliferation Treaty failed, the United States and North Korea signed an Agreed Framework. According to the agreement, North Korea agreed to freeze its operation and construction of nuclear reactors suspected of being part of a covert nuclear weapons program in exchange for two proliferation-resistant nuclear power reactors.[3] Moreover, under the agreement, the United States was to supply North Korea with fuel oil pending construction of the reactors and to implement that agreement, an international consortium called the Korean Peninsula Energy Development Organization (KEDO) was formed.[4] However, despite what seemed hopeful for two states’ relationship, the Agreed Framework collapsed.
Since the collapse of the Agreed Framework, the United States and South Korea have been trying to maintain economic sanctions on North Korea as punishment and to keep North Korea from developing a nuclear weapon. How come the United States did not enforce the collapsed Agree Framework to keep North Korea from developing a nuclear weapon? There are political reasons for its failure, of course, however, there are also legal reasons why the United States failed to enforce the Agreed Framework.
Agreed Framework is nearly impossible to legally enforce due to legal reasons. Under the international law, the Agreed Framework was not a treaty.[5] Thus, Agreed Framework was not legally binding.[6] Under Article II of the United States Constitution, the executive branch has the “power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.”[7] If the Senate is unlikely to approve that treaty, the executive branch can issue executive agreements to bypass the Senate’s approval process for international agreements.[8] Furthermore, the Supreme Court has honored executive agreements as being on the same level as Article II treaties.[9] Unfortunately for the Agreed Framework, it was never a treaty because it was difficult to obtain Senate’s approval to make it into a treaty; Agreed Framework was not even considered to be an executive agreement since the United States did not view the agreement as a binding agreement.[10] The U.S. General Accounting Office viewed the Agreed Framework as “a nonbinding political agreement” or “nonbinding international agreement.”[11] Moreover, under the international law, agreements between two countries are binding and governed by the provisions of the Vienna Convention on the Law of Treaties.[12]
What is the next best strategy to punish and force a regime who continues to develop a nuclear weapon? Loudspeakers may be the answer. During the month of August, the tension between North Korea and South Korea escalated. On August 4, two South Korean soldiers lost their legs after having stepped on land mines near the gate through which South Korean patrols would enter the Demilitarized Zone (DMZ).[13] On August 10, South Korea blamed North Korea for the landmine attack and began the loudspeaker broadcast as a retaliation, first time in eleven years.[14] On August 20, North Korea fired several artillery shells towards South Korea, announcing that unless South Korea silenced the loudspeakers, North Korea would begin military action in 48 hours.[15] Fortunately, South Korea and North Korea came to an agreement, and South Korea did stop its loudspeakers. [16]
Part II will discuss why North Korea deeply despises South Korea playing messages on loudspeakers.
[1]Jack Kim, U.N. Chief to Visit North Korea This Week: Yonhap, Reuters, November 15, 2015, http://www.reuters.com/article/2015/11/15/us-un-northkorea-idUSKCN0T419R20151115.
[2] Hooyeon Kim, North Korea Prepares for Possible Missile Launch: Yonhap, Reuters, November 15, 2015, http://www.reuters.com/article/2015/11/15/us-northkorea-missile-idUSKCN0T404K20151115.
[3]The U.S.-North Korean Agreed Framework at a Glance, Arms Control Assoc. (August 17, 2004), https://www.armscontrol.org/factsheets/agreedframework.
[4] Id.
[5] Erik Raines, Comment, Note: North Korea: Analyzing the “New” Nuclear Threat, 12 Cardozo J. Int’l & Comp. L. 349, 367 (2004).
[6] Id.
[7] U.S. Const. art. II, § 2.
[8] See General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A3, 55 U.N.T.S. 187.
[9] See Dames & Moore v. Regan, 453 U.S. 654 (1981) (applying a fairly loose standard to the practice of claim settlement by executive agreement, by implying congressional approval); United States v. Pink, 315 U.S. 203 (1942) (holding that the President has the power to conduct foreign affairs without the consent of the Senate).
[10] See Samuel S. Kim, North Korea Foreign Relations in the Post-Cold War World, 71-77 (Strategic Studies Institute, April 2007), http://www. strategicstudiesinstitute.army.mil/pdffiles/PUB772.pdf (discussing inter-Korean relations following the Korean War).
[11] Id.
[12] See Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679.
[13] Sang-Hun Choe, South Korea Accuses the North After Land Mines Maim Two Soldiers in DMZ, N.Y. Times, Aug. 10, 2015, http://www.nytimes.com/2015/08/11/world/asia/north-korea-placed-mines-that-maimed-2-south-korean-soldiers-at-dmz-seoul-says.html?_r=0.
[14] Id.
[15] Ju-Min Park, Tensions Rise as North and South Exchange Fire, Reuters, Aug. 20, 2015, http://www.reuters.com/article/2015/08/21/us-northkorea-southkorea-artillery-idUSKCN0QP0RO20150821.
[16] Ju-Min Park, North, South Korea Reach Agreement to Ease Tensions, Reuters, Aug. 25, 2015, http://www.reuters.com/article/2015/08/25/us-northkorea-southkorea-idUSKCN0QR02D20150825.
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