Why the US must conclude a proper treaty with North Korea

A year ago in Singapore, for the first time ever, a sitting American president met with a North Korean leader. After a particularly intense military escalation in 2017, the two promised “new relations in accordance with the desire of the peoples of the two countries for peace and prosperity.” Yet these relations appear today ready to collapse at any moment. If Washington and Pyongyang don’t soon secure some deescalating measures in a legally binding agreement, we could be headed straight back to the “fire and fury” of 2017.

The promises in Singapore bought some time and goodwill, but they did not change any of the legal factors driving conflict. The two Koreas technically remain in a state of war, sanctions still are crushing North Koreans, and Pyongyang still dismisses the United Nations Security Council ban of its nuclear weapons as a violation of its right to self-defense. A follow-up summit between President Trump and Kim Jong Un in Hanoi also remained legally fruitless. Since then, North Korea has accused the United States of hostile policies that have reduced the Singapore joint statement to a “mere blank sheet of paper.”

The reason nuclear talks have been failing for a quarter-century is not that the two sides have no common interests. Both are trying to achieve greater security. They are just pursuing it with means that make the other feel unsafe — one side with a nuclear deterrent, and the other with coercive means to force unilateral disarmament. Both know in fact that there are plenty of legal instruments available that could achieve a shared security that does not come at the expense of the other, such as peace, non-aggression and arms control agreements.

The crux of the problem is that Americans and North Koreans utterly distrust each other. Whenever they reach an agreement, they end up convincing themselves that the other is cheating. Yet, rather than address this problem head on by demonstrating as clearly and solemnly as possible their intent to be legally bound, the trend has been towards more and more informality.

There never has been a U.S.-North Korea agreement that went through ratification, an otherwise standard procedure for international treaties. The “Agreed Framework” of 1994 was never ratified by the Senate and, while Pyongyang still considered it created legal obligations, the State Department denied it was binding. Tellingly, Congress even refused to fund the concessions the Clinton administration had made to coax Pyongyang into the deal. We cannot expect North Korea to take its obligations seriously when the United States won’t do the same.

Later administrations stepped even further away from a legally binding treaty. The first highlight of the George W. Bush era was a “Joint Statement” in 2005, which nearly succumbed to a dispute on sanctions. Then came the ambiguously named “Initial Actions for Implementation” in 2007, which ended because of divergences on verification procedure. Later, the Obama administration’s so-called “Leap Day deal” in 2012 collapsed over a satellite launch even before the public saw evidence of an agreed text.

Of course, ratification is not by itself a guarantee that an agreement will hold. Deals last only if both sides believe they are better off with the deal than without. North Korea notoriously withdrew from the Korean War Armistice Agreement and the Nuclear Non-Proliferation Treaty. The U.S. record is not spotless either, as recently suggested by the departures from the Iran deal or the Intermediate Nuclear Forces Treaty.

Refusing to ratify nevertheless is an instant trust-buster. Who would tolerate a businessman refusing to seal a deal with a binding contract? Ratification may be difficult under the U.S. Constitution, which requires two-thirds of the Senate, but it nevertheless remains the expected international norm. North Korea certainly ascribes value to it, as it has ratified agreements with dozens of countries throughout the world, including South Korea. This may help explain why Pyongyang expressed such disdain when the Trump administration offered a non-binding peace declaration, rather than a proper peace treaty.

There is simply no military solution to the Korean nuclear crisis — at least none that would come at an acceptable cost to U.S. and allied security, given North Korean counterstrike capabilities. It is urgent that both sides recognize they would be much safer if they agreed to stop the current uncontrolled escalation of tensions. They should then seal this deal as formally, solemnly and bindingly as possible.

Henri Féron is a non-resident senior fellow at the Center for International Policy, where he focuses on legal and security issues in East Asia. He advises several national and international advocacy groups on the Korean nuclear crisis. Follow him on Twitter @henriferon.