Six-Party Talks Produce Action Plan on North Korean Nuclear Disarmament
On February 13, 2007, the governments taking part in the fifth round of the Six-Party Talks concerning nuclear disarmament of North Korea released an action plan designed to lead to the denuclearization of the Korean Peninsula (February 13 Action Plan). China, Japan, Russia, South Korea, the United States, and North Korea (formally called the Democratic People's Republic of Korea, or DPRK) agreed to specific initial actions and timetables that support the objectives of terminating and eliminating North Korea's plutonium-based nuclear weapons program. This Insight describes the February 13 Action Plan and its implications for international law.
Background to the February 13 Action Plan
The February 13 Action Plan builds upon a previous joint statement issued after the fourth round of the Six-Party Talks on September 19, 2005 (September 19 Joint Statement), according to which North Korea "committed to abandoning all nuclear weapons and existing nuclear programs." Efforts to achieve this objective were set back by North Korea's July 2006 missile firings over the Sea of Japan and its October 2006 announcement of a successful underground test of a nuclear weapon. These North Korean actions led to Security Council Resolutions 1695 (2006) and 1718 (2006), condemning the actions and making certain legally binding decisions, including that North Korea "shall abandon all nuclear weapons and existing nuclear programmes in a complete, verifiable and irreversible manner[.]" The fifth round of the Six-Party Talks reconvened in December 2006, and the third session of the fifth round, held in Beijing, produced the February 13 Action Plan.
The February 13 Action Plan
By the terms of the February 13 Action Plan, North Korea agreed that, within 60 days, it would "shut down and seal for the purpose of eventual abandonment the Yongbyon nuclear facility," where it had manufactured and reprocessed plutonium for use in nuclear weapons. In exchange, the five parties agreed to provide North Korea with up to one million tons of fuel oil and other economic and humanitarian assistance, and Japan and the United States pledged to move toward normalizing relations with North Korea. The Action Plan also announced the establishment of five Working Groups tasked with discussing and formulating "specific plans for the implementation of the [September 19] Joint Statement[.]"
The Action Plan does not immediately obligate North Korea to abandon its plutonium nuclear weapons program, only to "freeze" it, and it does not impose any immediate obligations concerning North Korea's nuclear weapons program utilizing highly enriched uranium. In addition, North Korea agreed to "invite back" inspectors from the International Atomic Energy Agency (IAEA) in order to conduct all necessary monitoring and verifications related to the shutting down and sealing of the Yongbyon facility, but this commitment was qualified by language indicating that the scope of such inspections will be "agreed between IAEA and DPRK" at a later date.
The February 13 Action Plan does not address the status of North Korean membership in the Nuclear Non-Proliferation Treaty (NPT). North Korea joined the NPT in 1985. In 2002, it ousted IAEA inspectors from its nuclear facilities and, in 2003, announced its withdrawal from the NPT. Security Council Resolution 1718 contained a demand that North Korea "return to the [NPT]," and, although North Korea committed in the September 19 Joint Statement to "returning" to the NPT "at an early date," the February 13 Action Plan does not contain any provisions on this issue.
The February 13 Action Plan and International Law
The parties to the Action Plan have made political commitments to take specific steps toward North Korea's disarmament, but the Action Plan does not constitute a treaty creating legal obligations. For an international agreement to be considered a treaty, the parties must enter into the agreement with the intent that international law governs it. The February 13 Action Plan is an unsigned recitation of "initial actions" for implementing the non-binding September 19 Joint Statement, and the Action Plan contains no indication that the parties intended to create international legal obligations. Moreover, the only concrete measures are the shutting down and sealing of North Korea's Yongbyon facility and the provision of an initial 50,000 tons of fuel oil to North Korea. The remaining actions listed in the Action Plan are procedural, such as the commitments by Japan and the United States to start bilateral talks with North Korea on normalizing relations, or involve the establishment of working groups to carry out the Action Plan's provisions. The political nature of the February 13 Action Plan means that it is not subject to international legal rules governing treaties, such as rules on remedies for violations or on interpretation of treaty provisions.
Additionally, the Action Plan cannot be construed as containing statements from any party that might be binding under international law. The Action Plan involves heavily negotiated commitments finalized in a form that reveals the parties' intention not to be bound by international law. For a statement or declaration to create international legal obligations, the state in question has to make the statement with the intent to be bound by it under international law. Given the negotiated, reciprocal commitments in the February 13 Action Plan and the lack of any reference to legal obligations, North Korea's pronouncements in the February 13 Action Plan do not bind North Korea under international law.
All six parties to the February 13 Action Plan remain, however, bound by other rules of international law in their mutual relations, including the UN Charter, relevant treaty law, and customary international law. In particular, the six parties remain bound by Security Council Resolution 1718, which, among other things, imposed economic sanctions against North Korea and required North Korea to take certain steps toward nuclear disarmament. For China, Japan, Russia, South Korea, and the United States, normalizing trade and economic relations with North Korea would require the Security Council to lift economic sanctions currently in place under Resolution 1718. Similarly, North Korea remains legally bound to abide by the demands of the Security Council in Resolution 1718, which require it to abandon its nuclear weapons, suspend all ballistic missile activities, and end all other weapons of mass destruction (WMD) programs.
Although not a binding international agreement, the February 13 Action Plan is an important and substantial step toward the goal of eliminating North Korea's nuclear weapons program, and if implemented, it would move North Korea toward compliance with the binding demands for WMD disarmament made by the Security Council.
The next round of Six-Party Talks is scheduled to take place on March 19, 2007.
Christopher J. Le Mon, an ASIL member, is an Associate in the Washington, D.C. office of Shearman & Sterling LLP, and formerly served as law clerk to Judges Thomas Buergenthal and Vladlen S. Vereshchetin at the International Court of Justice.
 "Initial Actions for the Implementation of the Joint Statement," available at http://www.fmprc.gov.cn/eng/zxxx/t297463.htm (Feb. 13, 2007) (hereinafter "February 13 Action Plan" or "Action Plan").
 "Joint Statement of the Fourth Round of the Six-Party Talks," available at http://usinfo.state.gov/usinfo/Archive/2005/Sep/19-187747.html?chanlid=washfile (Sept. 19, 2005) (hereinafter "September 19 Joint Statement" or "Joint Statement").
 See Frederick L. Kirgis, North Korea's Missile Firings, ASIL Insight, July 24, 2006, at http://www.asil.org/insights/2006/07/insights060724.html.
 See Christopher J. Le Mon, International Law and North Korean Nuclear Testing, ASIL Insight, Oct. 19, 2006, at http://www.asil.org/insights/2006/10/insights061020.html.
 UN Security Council Resolution 1695 (2006), July 15, 2006, U.N. Doc. S/RES/1695; UN Security Council Resolution 1718 (2006), Oct. 14, 2006, U.N. Doc. S/RES/1718 (hereinafter S.C. Res. 1718).
 S.C. Res. 1718, para.6.
 February 13 Action Plan, para. II(1).
 February 13 Action Plan, para. III.
 The termination of the nuclear weapons program based upon highly enriched uranium program does appear to be a subject for subsequent negotiations between the parties. See February 13 Action Plan, para. II(2) ("The DPRK will discuss with other parties a list of all its nuclear programs as described in the Joint Statement, including plutonium extracted from used fuel rods, that would be abandoned pursuant to the Joint Statement.").
 February 13 Action Plan, para. II(1).
 S.C. Res. 1718, para. 4.
 Vienna Convention on the Law of Treaties, art. 2(1)(a), available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.
See Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 253, para. 46 (Dec. 20); Nuclear Tests (N.Z. v. Fr.), 1974 I.C.J. 457, para. 46 (Dec. 20). See also Le Mon, supra note 4 (arguing that no statements in the September 19 Joint Declaration created international legal obligations on North Korea).
 S.C. Res. 1718, para. 8.
 S.C. Res. 1718, paras. 6-7.