If US President Donald Trump should sometime manage to re-start the cancelled nuclear summit talks with Kim Jung Un, his core focus should be on achieving stable nuclear deterrence, not “denuclearization.” In principle, of course, getting Pyongyang to relinquish its nuclear assets (both actual weapons and corresponding infrastructures) would be best, but any such optimal summit result would be inconceivable. Why, after all, would the North Korean leader willingly relinquish his only real source of power and influence, not only with Washington, but with the rest of the world as well?
This brings viable American options back to achieving stable nuclear deterrence with the regime in Pyongyang. Although key elements in creating such a basic condition of mutual safety would necessarily be geopolitical or strategic rather than legal, certain corollary jurisprudential issues would inevitably arise and also demand close attention of the parties. Foremost among these prospectively helpful issues would be the legal obligations and parameters of individual states in our still-decentralized system of international law, a “Westphalian” arrangement for managing global power that has endured since 1648, and continues to call for an equilibrium founded upon vigilante dynamics and more-or-less reciprocal threats of retaliatory destruction.
While largely informal and uncodified, this core arrangement nonetheless expects individual states to distinguish between aggression and self-defense, and to abide by all peremptory norms of the law of war, aka humanitarian international law, or the law of armed conflict.
It follows that global power management by arrangement of threats and counter-threats (however time-dishonored and regrettable) would not be “illegal,” but all peace and “balance” objectives would still need to be achieved in ways that are recognizably consistent with discrimination (distinction), proportionality and military necessity.
Looking ahead to possible future iterations of the North Korean nuclear threat (whether foreseen or unforeseen), the absence of any centralized global authority need not necessarily indicate the absence of pertinent international law. As every professor of international law routinely instructs students on the first day of each course, this particular normative system of controlling violence and injustice is plainly “unique” (because it is self-help centered, or decentralized), but is nonetheless authoritatively law-making and law-enforcing.
Should Washington and Pyongyang sometime manage to implement a promising and durable system for mutual deterrence, it would likely evolve in a fashion similar to the protracted US-Soviet stand-off during the Cold War. This means that while basic elements of decentralized law enforcement would stem directly from the specific and tangible realities of US-North Korean competitive power relations, these elements might also be strengthened and reinforced by certain appropriate treaties and conventions, not only certain special and new agreements concerning nuclear arms control, but also the entire extant network of fundamental rules and jurisprudential expectations. In this connection, such foundational agreements as the UN Charter; Convention on the Rights and Duties of States; Vienna Convention on the Law of Treaties; Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States; International Law Commission Draft Articles on State Responsibility; and the Rome Statute of the International Criminal Court come immediately to mind.
Over the years, legal scholars have questioned (quite reasonably) the logic and legality of a nuclear threat system existing within the framework of a UN Charter obligation (Article 2/4) to “…refrain from the threat or use of force…,” but this codified obligation is expressly linked to those threats that are directed “against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” In other words, at least in a narrowly technical sense, those international threats that are intended only to maintain global peace, security and balance are not ipso facto “wrong,” and could conceivably be welcome or even indispensable components of international law enforcement.
For this country, President Donald Trump should be reminded: international law is already part of the domestic law of the United States, and each and every peremptory obligation of the former is clearly incorporated into binding US law. In essence, the bases for any such incorporation can be discovered at Article VI of the US Constitution (the “Supremacy Clause”), and at such major US Supreme Court decisions as the Paquete Habana (1900); the Lola (1900); and Tel Oren v. Libyan Arab Republic (1984). This means, inter alia, that if the US should proceed to disregard various international law expectations in its implementation of stable nuclear deterrence with North Korea, it would automatically be in violation of its own municipal law.
Although obvious enough to legal scholars, this fact is still generally overlooked by certain American politicians who see only bifurcation or dichotomy between US and international law.
There is one more rudimentary aspect of jurisprudential obligation and prospective mutual deterrence between US and North Korean adversaries that warrants present mention. This significant aspect can be found within Emmerich de Vattel’s classic text of 1758, The Law of Nations, or the Principles of Natural Law. According to this seminal Swiss scholar, “The first general law, which is to be found in the very end of the society of Nations, is that each Nation should contribute as far as it can to the happiness and advancement of other Nations.” To be sure, though there is little in human history that would suggest any discoverable optimism about this peremptory principle of law and justice, it still remains an incontestable and commendable legal goal for all states, including, of course, both North Korea and the United States.
Ultimately, for Pyongyang and Washington, any future negotiations must be soundly based upon solid intellectual as well as jurisprudential foundations. During these expected exercises in diplomacy, each side, at least as long as it remains recognizably rational, will be seeking certain viable forms of “escalation dominance.” Accordingly, North Korea and the United States will each expectedly strive for this objective without needlessly endangering its own prospects for achieving enhanced national security via stable nuclear deterrence.
Always, in such matters, judgments of enemy rationality will be critical. For example, if the American side should sometime calculate that its North Korean counterpart is not fully rational, various latent incentives to undertake an American military preemption could then become more urgent. This is the case, moreover, even if the anticipated costs of any such defensive first-strike would seem to be overwhelming.
A U.S. preemption against North Korean hard targets might be able to qualify in apt legal terms as “anticipatory self-defense;” but it could come at an unreasonably high human cost. What, after all, would it really mean to act legally at the expense of grievously high fatalities? Of what conceivable authentic benefit could it be for the United States to claim that its defensive first strike was fully permissible, and only then to suffer enormously destructive and distressingly palpable enemy retaliations?
Principal alignments will also “count.” In creating a stable nuclear deterrence regime between Washington and Pyongyang, US President Donald Trump would need to take into consideration the presumptive expectations of both Moscow and Beijing. Should this deterrence regime ever be allowed to falter or fail, and should U.S. President Donald Trump sometime still decide to undertake certain selective military actions against North Korea, the general contours of Kim Jung Un’s response would need to be anticipated.
Accordingly, Pyongyang, having no conceivably logical alternative to launching several possible forms of armed reprisal, could choose to strike (a) the American homeland; (b) American military forces in the region, and/or (c) assorted other targets in Guam, Japan, or South Korea.
Whatever North Korea’s preferred configuration of selected targets, Kim Jung Un’s retaliatory blow would likely be designed so as not to elicit any unacceptably massive (possibly even nuclear) American counter-retaliations. But any such carefully-reasoned conclusion by President Kim would depend, inter alia, upon (1) the Korean dictator’s own willing adherence to rational decision-making; and (2) the largely unpredictable synergies between Kim’s determined level of rationality and the reciprocally rational calculations of President Donald Trump. By definition, such synergies could produce assorted instability outcomes that are substantially more insidious than merely the additive sum of their respective “parts.”
If President Trump should ever decide to launch a conventional preemption, that is, a non-nuclear defensive first-strike, the North Korean response, whether rational or irrational, could be “disproportionate.” In that potentially chaotic case, one fraught with literally unprecedented potential for additional or accelerating competitions in risk-taking, the introduction of nuclear weapons into an already-volatile mix might not be discounted. If, on the other hand, President Donald Trump’s defensive first strike against North Korea were non-nuclear and tangibly less than massive, a rational adversary in Pyongyang might then determine that its chosen reprisal should be correspondingly “limited.”
If Mr. Trump’s consciously rational and systematically calibrated attack upon North Korea were wittingly or unwittingly launched against an irrational enemy leadership, the expected response from Kim Jung Un could still be some form or other of all out retaliation. Plausibly, any such North Korean response, whether nuclear or non-nuclear, would be directed at some as yet undeterminable combination of US, South Korean, and/or Japanese targets.
Even if it is being played by only rational adversaries, any advancing strategic “game” between Washington and Pyongyang would demand each player to strive relentlessly for “escalation dominance.” It would be in the manifestly unpracticed dynamics of such a perilous rivalry that the dire prospect of mutual catastrophe could rapidly emerge. Logically, at least, this mutually unwanted outcome could be produced in more-or-less unexpected increments of escalation by one or both of the two national players, or by any sudden quantum leap in destructiveness undertaken by North Korea and/or the United States.
Obviously, these are serious and challenging intellectual problems. It’s all bewilderingly complex, and foreseeably unprecedented. It follows, in facing off against each other for “escalation dominance,” and even under the most reassuring assumptions of bilateral rationality, both President Donald Trump and President Kim Jung Un would have to prepare themselves for endlessly possible miscalculations, errors in information, unauthorized uses of strategic weapons, mechanical or computer malfunctions, and literally measureless nuances of cyber-defense/cyber-war.
Should President Trump ever decide to strike North Korea preemptively, he would then need to be reminded of the classic warning offered by Carl von Clausewitz. Long before military planners could ever even have imagined a nuclear war, the insightful Prussian general and strategist had cautioned leaders in On War about “friction” or “the difference between war on paper, and war as it actually is.” Accordingly, nuclear brinksmanship between Washington and Pyongyang would necessarily take place in frightfully uncharted waters, and would require both presidents to steer a consistently steady course between escalation dominance and national survival.
Kim Jung Un will never accept US President Donald Trump’s favored definition of “denuclearization,” that is, unilateral nuclear disarmament by North Korea. This conclusion obtains even if the American president should indicate a corresponding willingness to denuclearize the entire Korean peninsula. It follows that Mr. Trump’s most ambitious diplomatic objective should be the creation of stable nuclear deterrence “regime” between Washington and Pyongyang. Although less satisfying than the more fanciful idea of getting rid of North Korean nuclear assets, such a security regime remains America’s best available strategic option for dealing with northeast Asia. This deterrence regime could be erected upon foundations that are not only secure and promising in specifically operational terms, but are also both legal and law-enforcing. Indeed, by maintaining a proper jurisprudential focus in creating stable nuclear deterrence between Washington and Pyongyang, both national “players” would thereby enhance the operation of a sorely needed long-term arrangement for managing power in the unsteady region.
This article was first published at Jurist.