People's Democracy

OPEN LETTER TO UN SECRETARIAT

Security Council Resolutions on DPRK Violate UN Charter

On July 23, 2013, the All India Kisan Sabha, All India Agricultural Workers and Students Federation of India issued an open letter to the United Nations Secretariat on the legality of the UN Security Council resolutions on non-proliferation and Democratic People’s Republic of Korea (DPRK). The latter has been reproduced below.

THE Security Council of the United Nations (UNSC) has adopted a series of resolutions in recent years, purporting to address the subject of peace and security on the Korean peninsula, that violate existing international treaties and that are in violation of the principles of the UN Charter itself. The effect of these resolutions is to violate the legitimate rights of the DPRK as a sovereign state and by implication of all sovereign states.

The resolutions we refer to are Resolutions 1718 (2006), 1874 (2009) and 2094 (2013), of the Security Council, which were adopted under Chapter VII of the UN Charter, as well as Resolution 2087 (2013). These resolutions contain provisions that:

1) Violate the sovereign rights of the DPRK under the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the Outer Space Treaty),

2) Violate the sovereign right of self-defence of the DPRK by attempting to ban nuclear activities of the DPRK, when these same activities are permitted in the case of the permanent members of the Security Council. The attempt to do this used an inappropriate reference to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) that disregards the fact that the DPRK declared its withdrawal from the NPT on the 10th of January, 2003 and is no more a party to the treaty.

3) Attempt to create and apply different rules for the DPRK, in violation of the UN Charter, that do not apply to other sovereign nations and in particular do not apply to the permanent members of the Security Council, all of whom claim the right to develop and use nuclear weapons as they see fit and which, in the case of the United States of America, has actually used them to destroy cities in Japan.

Therefore, these resolutions are in violation of the UN Charter, as they infringe upon sovereign rights of the DPRK, offend the very spirits and principles of the UN Charter, and must be rescinded.

For your serious consideration, we set out below out main points concerning each of the above-mentioned resolutions, as follows.

1) UNSC Resolution 1718 (2006): Paragraph 5 of this resolution states that “the SC decides that the DPRK shall suspend all activities related to its ballistic missile programme,” and paragraph 7 provides that it “decides also that the DPRK shall abandon all other existing weapons of mass destruction and ballistic missile programme in a complete, verifiable and irreversible manner.” There is to date no international law, written or customary, however, on which the SC could rely upon to make such discriminatory provisions targeted exclusively only against the DPRK. Once again we draw your attention to the fact that other countries are free to carry out such activities, including all the permanent members of the Security Council.

Paragraph 6 states on the other hand that it “decides that the DPRK shall abandon all nuclear weapons and existing nuclear programmes in a complete, verifiable and irreversible manner, shall act strictly in accordance with the obligations applicable to parties under the Treaty on the Non-Proliferation of Nuclear Weapons.” Once again this provision cannot be applied when it does not apply to other nations and to none of the permanent members of the Security Council, and also when the DPRK is not even a member of the NPT.

2) UNSC Resolution 1874 (2009): Paragraph 3 of the resolution provides that it “decides that the DPRK shall suspend all activities related to its ballistic missile programme and in this context re-establish its pre-existing commitments to a moratorium on missile launches.” This is in violation of the Outer Space Treaty referred to above.

3) UNSC Resolution 2094 (2013): Paragraph 2 of the resolution provides that it “decides that the DPRK shall not conduct any further launches that use ballistic missile technology, nuclear tests or any other provocation.”

Article 1 of the Outer Space Treaty, however, provides that:

--- The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

--- Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all states without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

It is crystal clear, therefore, that the rights of peaceful use of outer space are guaranteed without any condition to all state parties including the DPRK.

Article 4 of the Outer Space Treaty also provides that “The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited,” and that the “use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited.”

In other words, although use of outer space for the military purpose is forbidden under the treaty, it is crystal clear that not only “the use of military personnel” but also “the use of any equipment or facility” developed for military purposes “shall not be prohibited” in case of use of outer space for peaceful purposes. The resolution in this regard is in violation of the Outer Space Treaty and, again, can have no force or effect when all the permanent members of the Security Council engage in all manner of scientific research into and applications of space and rocket technology on an on-going basis including the development and use of rocket technology and the development and use of satellite technology much of which is known to have military applications. Such hypocrisy brings the Security Council and its members into grave disrepute.

4) UNSC Resolution 2087 (2013): Resolution 2087 does not contain any decision under Chapter 7 of the UN Charter. Instead, it attempts to create a new power of the Security Council that does not exist under the Charter. In its preamble to this resolution the Security Council states that “Recognising the freedom of all States to explore and use outer space in accordance with international law, including restrictions imposed by relevant Security Council resolutions” (italics added).

The Security Council attempts to arrogate to itself powers it does not have. No “restrictions” can be imposed on any sovereign nation unless in accordance with the UN Charter. It is cleat that the Security Council, recognising that it does not have such power or right to impose restrictions of any kind with respect to the use of artificial satellites, attempts to create such a power out of thin air. Such an interpretative statement regarding “international law” is obviously intended for the UNSC to deny the legal claim of the DPRK to launch artificial satellites in accordance with the provision of Article 1 of the Outer Space Treaty, which goes that “Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law.”

“International law,” as referred to in the said article, must be understood within the context of the following phrase: “without discrimination of any kind, on a basis of equality and in accordance with international law.” In other words, “international law,” as mentioned in the treaty only refers to customary international law, such as non-discrimination and sovereign equality.

Second, it must be legally understood that the treaty rights of any state party under the Outer Space Treaty that came into force in 1967 shall not be restricted or denied by any UNSC resolution adopted after 1967, unless otherwise agreed to by the said state party. It is crystal clear that the DPRK rejects flatly such restrictions imposed by the above-mentioned resolutions.

The Security Council does not have any legal authority to deny the fundamental legal rights of any state established in the most basic treaties such as the Outer Space Treaty. If the Security Council is to claim such a right, it would lead to grave consequences for international law and the sovereignty of nations as it would be to be able to revise or nullify any international law whimsically under its excuse of maintaining or restoring “international peace and security.” The UN Charter does not provide for such a mechanism nor does it grant the Security Council such power.

Finally, the authority of any UNSC resolution is political, and its binding force for UN member states derives only from Article 25 of the UN Charter which states the “members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” No UNSC resolution can claim any authority, legal or political, if it contains a denial of or a challenge to the legal rights of any UN member state in accordance with international law, including such basic treaties as the UN Charter and the Outer Space Treaty.

In conclusion, the DPRK has every reason to claim that it is free from any restriction imposed by the decisions of the UNSC resolutions in accordance with its legal rights guaranteed by the Outer Space Treaty and the Charter of the UN.

We, the undersigned, therefore request a response to the concerns stated in this letter which is written with a view to restoring the rule of international law and the sovereignty of nations as guaranteed by the Charter of the United Nations in general and with respect to the Democratic People’s Republic of Korea in particular.

As this is a matter of grave urgency that affects international peace and security, we expect the response of the UN Secretariat forthwith.