Revisiting the International Community’s Relationship with North Korea’s Nuclear Program: The Transnational Legal Process
Vol. 43 Associate Editor
In August 2021, the International Atomic Energy Agency (IAEA) published a report indicating that North Korea may have “restarted the operation of its main nuclear reactor used to produce weapons fuels.” The IAEA report concludes that “since early July 2021, there have been indications, including the discharge of cooling water, consistent with the operation of the reactor.” North Korea’s nuclear program and its controversies date back all the way back to 1993 – when the country declared its intention to withdraw from the 1968 Non-Proliferation Treaty as a result of the IAEA’s non-compliance concern. The hermit kingdom would then go on to conduct six known nuclear tests. Recently, the Treaty on the Prohibition of Nuclear Weapons (TPNW) was adopted by the United Nations (UN) in January 2021, thereby finally prohibiting countries from “producing, testing, acquiring, possessing or stockpiling nuclear weapons,” and implementation of other transfer restrictions of such technologies under the international law. The treaty is largely symbolic in that major nuclear powers and North Korea have not yet signed the treaty. Regardless, North Korea’s recent nuclear activity deserves a new legal perspective. How must one address the North Korean problem in a world where nuclear weapons have become illegal? How can the international community get reticent state actors to abide by the treaty’s conditions? The transnational legal process framework may provide an interesting legal solution for IAEA’s troubled relationship with the North Korean nuclear program. This framework, developed by Harold Koh, is a process composed of three steps: (1) The “interaction” stage where state actors communicate in order to identify a common interest within an institutional, bilateral, or multilateral setting, (2) the “interpretation” stage where said actors interpret what ought to be applicable legal norms in a given context, and (3) the “internalization” stage where said interpretations are gradually socialized and enforced by said actors’ own legal systems. The IAEA or other international organizations could use Koh’s insights to guide their interactions with North Korea and further limit the country’s nuclear program. For example, Koh argued that the 1994 Agreed Framework, a bilateral agreement between the United States and North Korea, is an excellent example of why transnational legal processes are important: “The Agreed Framework worked moderately well for about a decade. While there is no doubt that the North Koreans violated it, neither should there be any doubt that it had a restraining effect on North Korea’s nuclear behavior… My point is that even if this transnational legal process approach did not work perfectly, it was working. It was based on the right idea: using process to get the North Koreans to accept international norms as part of their internal value set. Most fundamentally, it put into motion a transnational process that could have led, eventually, to the internalization of norms into the North Korean system… [and then] in January of 2001, the Bush administration came in and abruptly abandoned this approach. They stopped negotiating, and instead began making coercive noises, naming North Korea as one of the three countries – along with Iraq and Iran – that formed the so-called “Axis of Evil.”” While scholars have primarily employed the transnational legal process framework to understand bilateral relations, the framework may also provide a novel solution for the international community to effectively tackle North Korea’s nuclear problem. This is an interesting proposal as inter-governmental organizations such as the UN have mostly adopted punitive measures (i.e., economic sanctions) to address North Korea’s nuclear program. The result is a clear and catastrophic failure – North Korea has refused IAEA inspectors access to the country’s nuclear facilities since 2009, and the country has been sanctioned by the UN Security Council multiple times (most recently in November 2017) over its aggressive nuclear tests. Instead of encouraging powerful state actors such as the United States to independently interact with North Korea, the international community may achieve greater success by allowing inter-governmental organizations such as the UN and IAEA to adopt the transnational legal process framework and establish a set of legal norms – thereby “interacting” with North Korea and its incentives to abandon its nuclear missiles program. It can achieve this by identifying a set of mutually-beneficial incentives that can bring North Korea to the negotiation table. This would be a sharp contrast to the punitive approaches that have shaped international conversations on the North Korean issue. Past examples of such incentives have included substantial humanitarian and economic aid as well as sanction withdrawal measures in exchange for certain levels of non-proliferation provisions. Once mutually-beneficial terms have been set, the involved parties may “interpret” how those terms ought to be executed in a manner that is semi-permanent. The recent TPNW could be a useful tool for this stage of the transnational legal process. As all pro-proliferation activities are explicitly prohibited under the TPNW, the international community can more actively pressure North Korea and other major nuclear powers to conform to this established set of legal norms. A combination of such pressure and mutually-beneficial incentives will hopefully (1) temporarily encourage North Korea to slow down its nuclear program, and (2) eventually “internalize” such incentive-based approach into its domestic legal system, thereby making it a permanently law-abiding state actor under the TPNW.
 Hyung-jin Kim, IAEA: N Korea Appears to Have Resumed Nuke Reactor Operation, Assoc. Press (Aug. 30, 2021), https://apnews.com/article/north-korea-nuclear-reactor-iaea-8ed3f0ba8634094a8e49f9e1b5e4c46f  Id.  See Orde F. Kittrie, Averting Catastrophe: Why the Nuclear Nonproliferation Treaty Is Losing Its Deterrence Capacity and How to Restore It, 28 Mich. J. Int’l L. 337 (2007).  North Korea Nuclear Tests: What Did They Achieve?, Brit. Broad. Corp. (Sept. 3, 2017), https://www.bbc.com/news/world-asia-17823706  Bill Chappell, U.N. Treaty Banning Nuclear Weapons Takes Effect, Without the U.S. and Other Powers, Nat’l Pub. Radio (Jan. 22, 2021), https://www.npr.org/2021/01/22/959583731/u-n-treaty-banning-nuclear-weapons-takes-effect-without-the-u-s-and-others  Id.  Harold Koh, Why Do Nations Obey International Law, 106 Yale L. J. 2313, 2599 (1997).  Harold Koh, Jefferson Memorial Lecture – Transnational Legal Process after September 11th, 22 Berkeley J. Int’l L. 337, 347 (2004).  See Bruce E. Bechtol Jr., North Korean Illicit Activities and Sanctions: A National Security Dilemma, 51 Cornell Int’l L. J. 57, 58 (2018).  Kim, supra note 1.  See Samuel Ramani, China’s Approach to North Korea Sanctions, The Diplomat (Jan. 10, 2018), https://thediplomat.com/2018/01/chinas-approach-to-north-korea-sanctions/  See Michael Whitty, The Effectiveness of Economic Sanctions: The Case of North Korea, 2 N. Kor. Rev. 1, 55–56 (2006).