DECEMBER 15, 2017
In this essay, Peter Hayes argues: “We know that a nuclear free Korean Peninsula is linked to the entire region and cannot be achieved alone by the two Koreas. We need to choose which ports we are headed to and then adapt to the prevailing winds along the way to avoid the many reefs that lie in the way. Strategic drift eventually will result in war and nuclear war, for which no wind is favorable.”
Acknowledgment: This report was funded by MacArthur Foundation.
This essay is based on a talk given at the 2017 IFANS Conference on Global Affairs, “Nuclear-Free Peninsula: Strategies and Action Programs for the Moon Jae-in Administration,” Korea National Diplomatic Academy (KNDA), session III, Dealing with North Korean Problem: Lessons Learned and Devising a New Approach, December 11, 2017, Seoul.
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II. NAPSNET BLUE PETER BY PETER HAYES
NO WIND IS FAVORABLE IF YOU DON’T KNOW YOUR PORT
DECEMBER 15, 2017
Sailors say “If you don’t know your port of destination, then no wind is favorable.”
This axiom applies well to the standoff between the international community and the DPRK over its nuclear weapons program. The DPRK and the United States in particular appear to have no common end state in mind when it comes to their nuclear weapons and what might lead to a “denuclearized Korean Peninsula.”
Drawing on earlier analysis, Mort Halperin et al have outlined the first two phases of a comprehensive security settlement that could lead to peaceful resolution of the DPRK nuclear issue. The first deals with freezing the North’s missile program; the second with freezing its fissile material production. These are the building blocks of a new approach and will take 2-3 years to complete.
It is critical to strike a clear understanding with the DPRK at the outset of talks, applying the principle that nothing is agreed until everything is agreed, as to what exactly constitutes its nuclear disarmament, what it would have to do, when, and verifiably so, and what reciprocal obligations the DPRK and the other five parties undertake with respect to North Korea’s incremental disarmament.
The essence of phase 3 is that the North receives a calibrated, legally binding assurance from the Nuclear Weapons States that it will not be threatened nor attacked with nuclear weapons, in return for which it disarms its nuclear weapons.
The simplest and only way to achieve this outcome is to declare and implement a legally binding Northeast Asia Nuclear Weapons Free Zone Treaty, including North Korea at the outset.
As a full party to the treaty, the DPRK would undertake specific actions to eliminate its nuclear weapons and would commit to comply with milestones of disarmament over set timelines.
Such a treaty is a standard UN multilateral convention that both Koreas have had no problem signing in the past and avoids the issue of competing claims to sovereignty over the entire Korean peninsula.
It situates Korean denuclearization in a durable regional framework, whereas a Korea-only denuclearization may not survive the stresses of inter-Korean relations.
It also acknowledges the reality that the September 2005 Principles have been superseded. Simply insisting that the North disarm and rejoin the Nuclear Nonproliferation Treaty (NPT) is unrealistic for a couple of reasons.
First, North Korea would have little confidence that future benefits—in particular the ending of nuclear threat against the North by the United States—would be realized. Incremental disarmament to come into compliance with a NWFZ would allow the DPRK to ascertain whether the comprehensive security settlement, including the NWFZ element, is durable over multiple political cycles in the United States and South Korea.
Equally, the other parties may calibrate their commitment to the rate of North Korean disarmament on line with the specified timelines agreed at the outset.
Second, it will take time to actually disarm—and North Korea cannot actually rejoin the NPT until it is fully disarmed.
Meanwhile, a legally binding framework based on common understandings and reciprocal commitments will be needed to manage nuclear threat in the region, and most urgently, North Korean and American nuclear threats.
Third, the NWFZ approach also enables the five parties to acknowledge that the DPRK has nuclear weapons, for the purposes of signing and ratifying a NWFZ treaty that includes the DPRK, but also rejects the legitimacy of these weapons. This acknowledgment is conditioned on the DPRK’s commitment to disarm them completely and return to the nuclear non-proliferation treaty as a fully compliant non-nuclear weapons state. It is the opposite of accepting that the DPRK is a nuclear weapons state.
Finally, a NWFZ also treats the DPRK on an equal basis with all states in the region, because the NWFZ would not only address the DPRK’s nuclear threat, but would require all states to change how they manage nuclear threats.
Until and after it is created, nuclear extended deterrence will continue to operate. Indeed, a nuclear weapons free zone assumes that the nuclear weapons states will continue to threaten each other with offsetting nuclear threats.
Phase 3 may take ten years to complete, maybe longer, during which incremental nuclear weapons disarmament may be undertaken by the North and verified by the other parties to the NWFZ, accompanied by effective implementation of peaceful relations by the five parties.
Phase 3 would enable a presidential summit to take place “under the right conditions” within two to three years from now.
Thus, we know what ports must be visited for the United States, the ROK, the DPRK, and the other three key parties to denuclearize the Korean Peninsula.
A first step along this road might be for South Korea to convene an eminent persons group with the other four parties to examine this framework for consideration when the Six Party Talks resume, as they must; and to share this concept with North Korean counterparts.
Looking further down the disarmament voyage on which it must embark, especially if the two Koreas are creating some kind of confederation, the ROK should examine the advantages of deepening its non-nuclear credentials in a NWFZ by signing and ratifying the Nuclear Weapons Prohibition Treaty at the same time as other parties to a NEA-NWFZ.
By eschewing nuclear extended deterrence as a nuclear prohibitionist rather than a nuclear umbrella state, but retaining its external alliances, the ROK may gain additional benefits at the peninsular, regional, and global level from prohibiting nuclear weapons in every dimension from its security posture, at a small or no cost at all to its security and only small adjustments, if any, to its military forces, command and control systems, and early warning systems, and those of its allies.
In conclusion, let me state clearly that the DPRK’s nuclear threats are outrageous, opportunistic, and completely unjustifiable. Under international law, they constitute a form of nuclear aggression and they have no place in civilized discourse.
Equally, American signaling that North Korea is targeted with nuclear weapons, while more clinical, is equally lethal to the prospects for tension reduction, dialogue, and resolution of the nuclear issue in Korea.
The use of nuclear weapons in Korea, a very small place, will almost certainly contravene the principles of necessity, proportionality, and distinction under international law, and will be a war crime, irrespective of who starts the war.
All personnel, civilian or military, have a duty to disobey nuclear strike orders that almost certainly would be manifestly illegal.
This is a duty that extends to nuclear umbrella states such as South Korea, not only the nine nuclear armed states, including North Korea, China, the United States, and Russia.
As Kim Jeong-Soon, a 27 year old mother who was bombed with her baby at Nagasaki in 1945, told me thirty years ago:
“From my experience, if nuclear war happens again, it would be better that all should be killed. Those remaining alive would all be crippled. I know because I have suffered it all. It is worse than dying.”
We should pay heed to Kim Jeong-Soon. We know that a nuclear free Korean Peninsula is linked to the entire region and cannot be achieved alone by the two Koreas.
We need to choose which ports we are headed to and then adapt to the prevailing winds along the way to avoid the many reefs that lie in the way.
Strategic drift eventually will result in war and nuclear war, for which no wind is favorable.
 Morton Halperin, Peter Hayes, Chung-in Moon, Thomas Pickering, Lee Sigal, “ENDING THE NORTH KOREAN NUCLEAR THREAT BY A COMPREHENSIVE SECURITY SETTLEMENT IN NORTHEAST ASIA”, NAPSNet Policy Forum, June 26, 2017, https://nautilus.org/napsnet/napsnet-policy-forum/ending-the-north-korean-nuclear-threat-by-a-comprehensive-security-settlement-in-northeast-asia/
 Anthony J. Colangelo, “THE DUTY TO DISOBEY ILLEGAL NUCLEAR STRIKE ORDERS”, NAPSNet Policy Forum, October 09, 2017, https://nautilus.org/napsnet/napsnet-policy-forum/the-duty-to-disobey-illegal-nuclear-strike-orders/
 Cited in P. Hayes, “Pikaton,” chapter 7, p. 245, Pacific Powderkeg, American Nuclear Dilemmas in Korea, Lexington Books, Lexington Massachusetts, 1990, at: https://nautilus.org/wp-content/uploads/2011/04/PacificPowderkegbyPeterHayes.pdf
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