TOWARD A NUCLEAR RECOGNITION THRESHOLD

In early 2018, North Korea’s Supreme Leader Kim Jong-un and U.S. President Donald Trump were not on the best of terms, publicly lashing out at each other and threatening the destruction of the other’s state. And yet, within the year they were smiling and handshaking in Singapore, followed not long after by a second summit in Vietnam. These summits, focused on the prospect of North Korea’s denuclearization, have in fact raised important questions concerning the legitimacy of North Korea’s nuclear weapons program: Does the willingness of a sitting U.S. President to meet with the North Korean leader constitute de facto recognition of North Korea as a nuclear-weapon state? Has North Korea joined India, Pakistan, and Israel as a member of the “Final Four”—the nuclear-weapon states that exist outside of the framework promulgated by the Treaty on the Nonproliferation of Nuclear Weapons?

International law does not offer clear answers to these questions, but the importance of defining de facto nuclear-weapon state (DNWS) status is paramount, lest the United States or another member of the international community continues to engage with North Korea and unwittingly offers the legitimacy that it desires. Consequently, this Note sets out to identify a “nuclear recognition threshold”—the point at which a nuclear-armed state can accurately be considered a DNWS. In this respect, the law on diplomatic recognition serves as a valuable reference point in formulating a “working test” to identify states that have crossed (or are likely to cross) this threshold. By articulating a working test for DNWS status, this Note hopes to encourage members of the international community to be more cognizant of their relationships with would-be nuclear proliferants, as such relationships may lead to those states attaining this status, gaining unintended legal and diplomatic benefits, and threatening the long-term efficacy of the global nonproliferation regime.

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∗ J.D. Candidate 2020, Columbia Law School.

Introduction

Following one year of saber-rattling between North Korea’s Supreme Leader Kim Jong-un and U.S. President Donald Trump, the former’s 2018 New Year’s address began on a rather inauspicious note. 1 See Daniel Wertz, Nat’l Committee on N. Kor., Issue Brief: The U.S., North Korea, and Nuclear Diplomacy 15–18 (2018), https://www.ncnk.org/sites/default/files/issue-briefs/US_DPRK_Relations.pdf [https://perma.cc/G72K-6RNC]. Perhaps President Trump’s most infamous remark vis-à-vis Kim Jong-un was his promise that continued threats against the United States would be “met with fire and fury like the world has never seen.” See Meghan Keneally, From ‘Fire and Fury’ to ‘Rocket Man,’ the Various Barbs Traded Between Trump and Kim Jong Un, ABC News (June 12, 2018), https://abcnews.go.com/beta-story-container/International/fire-fury-rocket-man-barbs-traded-trump-kim/story?id=53634996 [https://perma.cc/6Y83-MHLB]. Heralding North Korea’s attainment of nuclear weapons, he issued a grave warning:

In no way would the United States dare to ignite a war against me and our country. The whole of its mainland is within the range of our nuclear strike and the nuclear button is on my office desk all the time; the United States needs to be clearly aware that this is not merely a threat but a reality. 2 Kim Jong Un, Supreme Leader of N. Kor., 2018 New Year’s Address (Jan. 1, 2018) (transcript available at https://www.ncnk.org/node/1427 [https://perma.cc/G7X4-P7ER]).

And yet, despite the foreboding nature of these remarks, Kim Jong-un’s address—particularly his willingness for North Korea to participate in the 2018 Winter Olympics in South Korea—also sowed the seeds for his unprecedented summit with President Trump in Singapore in July 2018, followed not long after by a second summit in Hanoi. 3 See id. (“As for the Winter Olympic Games to be held soon in [S]outh Korea, it will serve as a good occasion for demonstrating our nation’s prestige and we earnestly wish the Olympic Games a success. . . . [W]e are willing to dispatch our delegation and adopt other necessary measures . . . .”); see also Jeremy Diamond, Takeaways from the Trump–Kim Hanoi Summit, CNN (Feb. 28, 2019), https://www.cnn.com/2019/02/28/politics/trump-kim-hanoi-summit-takeaways/index.html [https://perma.cc/P3QJ-4M3U].

From an international law perspective, the Singapore and Hanoi Summits occurred at a critical juncture in North Korea’s nuclear history, as the regime now asserts that it has joined India, Pakistan, and Israel as a member of the “Final Four”—the states that possess nuclear weapons without being formally recognized by the Treaty on the Nonproliferation of Nuclear Weapons (NPT). 4 Wertz, supra note 1, at 17 (“[A]fter North Korea’s Hwasong-15 test, with Washington discussing the prospect of military action, Kim Jong Un declared the country’s nuclear program to be ‘complete’ . . . .”); see also David S. Jonas, Variations on Non-Nuclear: May the “Final Four” Join the Nuclear Nonproliferation Treaty as Non-Nuclear Weapon States While Retaining Their Nuclear Weapons?, 2005 Mich. St. L. Rev. 417, 418–19 (“[O]nly the ‘Final Four’ remain outside the NPT regime: India, Israel, Pakistan and now North Korea, which recently withdrew from the NPT.”). North Korea today, however, exists in a legal grey area, as the status of its nuclear weapons program remains uncertain. 5 See infra section II.B.3. Consequently, the Singapore and Hanoi Summits present a timely opportunity to reflect on questions related to international recognition of nuclear weapons programs. 6 Note that the Singapore and Hanoi Summits also raise several important questions concerning the prospects for North Korean compliance with the vague objectives agreed to by Kim Jong-un and President Trump, the meaning of “complete denuclearization of the Korean Peninsula,” and the consequences for U.S. foreign policy in the region—particularly its security alliances with South Korea and Japan. See Press Release, White House, Joint Statement of President Donald J. Trump of the United States and Chairman Kim Jong Un of the Democratic People’s Republic of Korea at the Singapore Summit (June 12, 2018), https://www.whitehouse.gov/briefings-statements/joint-statement-president-donald-j-trump-united-states-america-chairman-kim-jong-un-democratic-peoples-republic-korea-singapore-summit [https://perma.cc/KL2A-MVL3] [hereinafter Press Release, Singapore Summit Joint Statement]; see also David Tweed, Isabel Reynolds & Jihye Lee, Rift Grows Between U.S. Allies over North Korea’s Nuclear Threat, Bloomberg (Aug. 28, 2018), https://www.bloomberg.com/news/articles/2018-08-28/rift-grows-between-u-s-allies-over-north-korea-s-nuclear-threat (on file with the Columbia Law Review); Mark Fitzpatrick, Faint Praise for the Trump–Kim Singapore Summit Statement, Int’l Inst. for Strategic Stud.: The Survival Editors’ Blog (July 12, 2018), https://www.iiss.org/blogs/survival-blog/2018/06/faint-praise-for-trump-kim-summit [https://perma.cc/5AQH-V6KL]. In particular, North Korea serves as a valuable case study to evaluate the meaning of “de facto nuclear-weapon state” (DNWS), a phrase that is often used in reference to the Final Four, but which presently lacks legal coherence. 7 See Claire Mills, House of Commons Library, Nuclear Weapons—Country Comparisons 57 (2017), http://researchbriefings.files.parliament.uk/documents/CBP-7566/CBP-7566.pdf (on file with the Columbia Law Review) (“Despite having conducted a number of nuclear tests . . . North Korea is not recognised by the international community as a nuclear weapons state. It is, however, regarded as nuclear capable and in the last few years . . . North Korea’s nuclear programme has been significantly accelerated.”). Mills raises an important distinction between North Korea and the three DNWS—India, Pakistan, and Israel—which is further discussed in section II.B.1, infra. This distinction rests on the fact that while all four states are understood to have technically acquired nuclear weapons outside of the NPT framework, North Korea is the only one of the four not effectively treated as an NWS.

This Note argues that this lack of coherence is problematic because it may enable a would-be nuclear proliferant such as North Korea to attain recognition despite widespread opposition from the international community. Therefore, it is important to work toward a concrete understanding of the “recognition threshold”—the point at which a nuclear-armed state would accurately be considered a DNWS. 8 An analogue to this sort of nuclear “recognition threshold” is found in the law on diplomatic recognition, which is discussed further in section I.B, infra. See Janis Grzybowski, To Be or Not to Be: The Ontological Predicament of State Creation in International Law, 28 Eur. J. Int’l L. 409, 421 (2017) (“[I]f recognitions ‘consolidate . . . effectiveness . . . [a]nd this consolidation in turn means reaching the legal threshold of statehood,’ the determination of when the threshold is crossed is still a question of either fact or recognition.” (second alteration in original) (quoting Anne Peters, Statehood After 1989: ‘Effectivités’ Between Legality and Virtuality 5 (Dec. 7, 2010) (unpublished manuscript), https://papers.ssrn.com/abstract_id=1720904 (on file with the Columbia Law Review))). In this respect, the law on diplomatic recognition serves as a valuable reference point in formulating a “working test” to identify states that have crossed (or are likely to cross) this threshold. 9 See infra section I.B.2. By articulating a working test for DNWS status, this Note hopes to encourage members of the international community to be more cognizant of their relationships with would-be proliferants, as such relationships may lead to those states attaining this status, gaining unintended legal and diplomatic benefits, and threatening the NPT’s long-term efficacy.

This Note proceeds in three parts: Part I introduces the origins of the NPT and its key structural weakness—the “Grand Bargain” between nuclear-weapon states (NWS) and nonnuclear-weapon states (NNWS)—before discussing the challenges and opportunities that inhere in formulating a clearer definition of DNWS status. Part II then introduces North Korea as a case study, beginning with an overview of the regime’s pursuit of nuclear weapons before discussing why its attainment of DNWS status would likely undermine the Grand Bargain. Finally, Part III recommends a two-pronged course of action for addressing the challenge of North Korea or future proliferants: (1) conceptually, establish a “working test” that identifies the threshold conditions for DNWS recognition, and (2) in practice, encourage members of the international community to coordinate their efforts to avoid pushing a would-be proliferant past this threshold.