One would think it unnecessary to point up the potential for disruption of a functioning international order now before us in the stand off of an American Administration headed by a President widely perceived to be inexperienced and impulsive,  and a perennially, aggressively oppositional North Korean dictatorship.

Threats of annihilation of much of the population and  productive capacity of a nation -- actually, in consequence, the two nations on the Korean peninsula -- and total disruption of largest trade relationship in the Pacific Rim -- -- now a cornerstone of a robust, healthy global  trade system -- hold the potential for rapid loss of tens of millions of lives, and disruption of supply chains and other exchanges deeply embedded in  the United States,  China, Korea and other nations. Standards of living would decrease in at least three major economies, and other economic systems around the world could face major uncertainties. The damage to the international fabric would be extensive and last for decades. So clearly it is necessary to understand and take account of what  looms before us. 

This moment has been long coming, It  embodies  conflicts which were only held in abeyance  by the truce which divided the Korean peninsula over six decades ago. And even the work-around here proposed would only reduce the tensions involved in Korea to currently manageable levels.

One might argue, as, in effect,  has Russia’s Putin, that the potential  danger to the United States and its allies of a Korean nuclear capacity is not likely to destabilize the world, and the United States is overwrought. But the forces in play and in this corner of the world are substantial and persistent, and if World War I taught us anything, it is that a destabilization event can spread far, and catastrophically, beyond its initial impulse.

At this point, it appears that many see Chinese action directed toward North Korea as the most effective and feasible action available. From the viewpoint of the United States, the venue of this writer, one can make the case that there is an asymmetry which China should recognize and respond to. Though nations economically aligned with the United State ring China in the Pacific Ocean area, none of them hosts missile capacities targeting or otherwise threatening China.  But North Korea, whose economy is closely linked with China’s, aggressively seeks to create a nuclear threat to the United States.

And while the leader of North Korea may not be incapable of connected thought,  or intentionally suicidal, he has a very narrow and coddled range of experience. The conduct of his regime suggests that he has little more regard for the millions of lives he might sacrifice in South Korea, or elsewhere, than he would for the ants in an anthill in his path, and he would care little or nothing for any disruption his conduct might lead to in  the interdependent web of nations in the Pacific and around the globe.

China’s capacity to restrain North Korea may be conditional, and its use in some respects awkward for it. Various writers have pointed out such considerations. But the economic and political stakes for China are massive. Korea is not economically essential to China.  But even were it to be considered so,  China need not  fear that an eventually unified Korea (which the United States does not need, and has not for decades been a core objective of the United States) would decisively tilt the Korean peninsula against China. China has propinquity, a long history, and major market opportunities for any unified Korea, should that, far from certainly, eventuate. In an open international trading regime, such advantages can be legitimately be employed without justifying massive economic or political response from the United States

Even though these are considerations which the representatives of the United States can press, one can consider including in the multilateral response to North Korea’s provocative adventure an arrangement which demands less from China than a complete abandonment  of North Korea, and which could be more effective as to all concerned.

Let us consider this  framework. From the viewpoint of the United States, the critical issue is not so much whether North Korea has an ‘atomic bomb’ as whether it can deliver such a weapon to our homeland, or the homelands of our economic and political partners, If North Korea’s ability to launch offensive  long range missiles could be removed, then the threat which has so aroused the United States, and others in the International community, would be eliminated or reduced to far more manageable dimensions.

At present, notwithstanding extensive sanctions, the world external to North Korea has not been able to stop the Kim regime’s pursuit of long distance missile capacity. Let us suppose that this continues to be the case, short of sanctions so severe as to induce enormous suffering upon the North Korean people and/or a reformulation of the uses of the United Nations apparatus?

Let us suppose that the United Nations apparatus were to be used to certify and if necessary prevent any ICBM launches, as a part of a program to convert the current truce in the Korean peninsula into a workable treaty. Such a program to in effect disarm North Korea, as to nuclear tipped missiles, would also necessarily involve stepping back sanctions, on proof of performance, and treaty obligations not to invade or use first strike force against North Korea if it were to abide by the treaty. 

To give such an arrangement multilateral teeth, let us then suppose that nations with the intelligence and technical capacities to detect the creation and exercise of long distance missile capabilities were to unite to  earmark for United Nations ‘trigger finger’ authorization the use of means to destroy, or otherwise make inoperative,  the missile facilities used to launch any ICBM from North Korea. In such an arrangement, no need of demonstrating any harm to any nation would be required, Nor would  any single nation, including but not limited to South Korea,  be identified as ‘the opponent’ justifying armed invasion or other forms of retaliation. The issue would become very simple. If North Korea undertakes action which is aimed at delivering destruction to any other nation, by ICBM means, and evidences that aim by ICBM deployment, it would immediately and effectively sacrifice such means, by concerted action of the entire international community. (Even  if, in frustrated rage, it were then to lash out on South Korea, it would have doubly earned the concerted opposition of a formidable group of nations.)

Even though this approach could be argued to be elegant and incisive, in concept, it would present  substantial practical and political issues.   The capabilities to counter ICBM use would have to be identified, and their availability and usage controls continually monitored. This is sensitive territory for any nation having such capabilities. A great deal of very sensitive demarcation and coordination among nations would have to be agreed upon and continually maintained. The mechanism entails such destruction potentials as to demand the most stringent oversight and maintenance, while maintaining lethal effectiveness. Clearly, any such program would have to be explored carefully, by a sufficiently diverse body, before presented for United Nations acceptance in some fashion.

There would also be costs of maintaining this control apparatus. (Those might be covered by levy on North Korean exports and imports. This approach would make international threatening costly to North Korea, while allowing peaceful commerce to proceed without embargoes and other stringent impediments.)

Also, granting this much latitude for lethal effect to a body of global scope would be troubling to many in the international community. If this were done, might it become a template for other cessions of lethal authority, reducing the scope of  national sovereignty, and eventually resulting in a group of Overlords remote from the global citizenry, subject to corrupt and brutal use of vast delegated powers? Bit by bit,  ‘emergency’ by emergency’,  by incremental steps, would international citizenry become international serfdom?

In the legal discipline, there is a saying to the effect that hard cases sometimes make bad law. North Korea is a a hard case. We do not want to let it lead to a  repressive international regime.

But ‘hard cases’ do arise, and require practical solutions. This hard case has a potential for vast global  damage, here and now. Let us consider looking down this path.

Getting concert among the most interested national entities, in a formalized framework of this sort, would reduce the possibilities of oppositional interactions among them, involving trade, or military, activity, getting out of hand, and destroying economic commerce important to all nations. North Korea would in effect face an effective blockade of nuclear force, and concerted resistance to any attempt to hold hostage millions of Koreans in aid of its long run effort to gain the capacity to use such force.  In exchange, North Korea would gain formal international recognition, would gain assurance that force would not be used against it, and would gain much improved possibilities for peaceful and productive commerce.  

Jack Pearce

Jack Pearce has served as Assistant Chief of a section of the United States Justice Department Antitrust Division responsible for liaison with other Executive Branch agencies, regulatory bodies, and Congressional bodies as to actions which would impact upon competition in the US economy, Assistant General Counsel to the US Agency for International Development, and Deputy General Counsel at a White House Office of Consumer Affairs. He has conducted an antitrust oriented legal practice in Washington DC, and also served on the Boards of Directors of business and civic organizations located in the Washington area.

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