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Tensions Rise Between the United States and North Korea

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On November 29, 2017, North Korea test-fired a ballistic missile that North Korean officials claim can deliver a nuclear warhead to any city in the United States. According to North Korea's leader Kim Jong Un, the missile launch “finally realised” the nation's ambition “of completing the state nuclear force, the cause of building a rocket power.” At the same time, U.S. officials have reiterated that “[t]he United States does not accept a nuclear North Korea.” As a result, North Korea's fast-expanding nuclear weapons program has exacerbated the already fraught relations between the two countries.

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References
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1 See Kim Jong Un Guides Test-fire of ICBM Hwasong-15, KCNA.kp (En.) (Nov. 29, 2017), at https://kcnawatch.co/newstream/1511960471-567278968/kim-jong-un-guides-test-fire-of-icbm-hwasong-15. The claim has been corroborated by independent experts. See Michael Elleman, The New Hwasong-15 ICBM, Int'l Inst. Strategic Stud. (Dec. 1, 2017), at http://www.iiss.org/en/regions/north-s-korea/the-new-hwasong-15-icbm-243a (calculating the missile “could deliver a moderately-sized nuclear weapon to any city on the US mainland”).

3 U.S. Dep't of Def. Press Release, Jim Mattis, U.S. Sec'y of Def., Joint News Conference with Secretary Mattis and South Korean Defense Minister Song Young-moo in Seoul, South Korea (Oct. 27, 2017), at https://www.defense.gov/News/Transcripts/Transcript-View/Article/1356752/joint-news-conference-with-secretary-mattis-and-south-korean-defense-minister-s [https://perma.cc/2C6G-K3GK].

4 Donald J. Trump, Remarks Prior to a Briefing on the Opioid Crisis and an Exchange with Reporters in Bedminster, New Jersey, 2017 Daily Comp. Pres. Doc. 2 (Aug. 8, 2017).

5 Julian Borger, North Korea Details Guam Strike Plan and Calls Trump ‘Bereft of Reason, Guardian (Aug. 10, 2017), at https://www.theguardian.com/world/2017/aug/10/north-korea-details-guam-strike-trump-load-of-nonsense.

6 Donald J. Trump, Remarks to the United Nations General Assembly in New York City, 2017 Daily Comp. Pres. Doc. 3 (Sept. 19, 2017).

7 Rick Gladstone & David E. Sanger, North Korea Says It Has the Right to Shoot Down U.S. Warplanes, N.Y. Times (Sept. 25, 2017), at https://www.nytimes.com/2017/09/25/world/asia/trump-north-korea.html?rref=collection%2Fsectioncollection%2Fworld&_r=0.

8 Full Text of Kim Jong-un's Response to President Trump, N.Y. Times (Sept. 22, 2017), at https://www.nytimes.com/2017/09/22/world/asia/kim-jong-un-trump.html.

9 E.g., Donald J. Trump ), Twitter (Oct. 1, 2017, 7:30 AM), at https://twitter.com/realDonaldTrump/status/914497877543735296.

10 See UN Charter Art. 2, para. 4 (providing that members “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”); cf. Roscini, Marco, Threats of Armed Force and Contemporary International Law , 54 Neth. Int'l L. Rev. 229, 234–43 (2007) (analyzing what constitutes a threat of force for purposes of Article 2(4)).

11 Nicholas Jones, PM Bill English Says Trump Threats to North Korea ‘Not Helpful, NZ Herald (Aug. 9, 2017), at http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11900966.

13 Moon Jae-in, Address by President Moon Jae-in on the 72nd Anniversary of Liberation (Aug. 15, 2017), available at http://www.korea.net/Government/Briefing-Room/Presidential-Speeches/view?articleId=148552.

14 Donald J. Trump, Statement on North Korea's Launch of a Ballistic Missile Over Japan, 2017 Daily Comp. Pres. Doc. 1 (Aug. 29, 2017); see also White House Press Release, Sarah Sanders, White House Press Sec'y, Press Briefing (Oct. 6, 2017), at [https://perma.cc/72ZT-YMGU] (“[A]ll options are on the table, as they have been.”).

15 For various views on these issues, see, e.g., Marty Lederman, No, the President Cannot Strike North Korea Without Congressional Approval, Just Security (Aug. 10, 2017), at https://www.justsecurity.org/44056/no-president-strike-north-korea-congressional-approval (arguing that a preemptive strike by the Trump administration would violate both international and domestic law); Monica Hakimi, North Korea and the Law on Anticipatory Self-Defense, EJIL:Talk! (Mar. 28, 2017), at https://www.ejiltalk.org/north-korea-and-the-law-on-anticipatory-self-defense (suggesting that “the law on anticipatory self-defense is potentially in flux” and that “North Korea could present something of a test case”); Jack Goldsmith, The Ease of Writing an OLC Opinion in Support of Military Action Against North Korea, Lawfare (Sept. 14, 2017), at https://www.lawfareblog.com/ease-writing-olc-opinion-support-military-action-against-north-korea (arguing that prior practice would allow executive branch lawyers to conclude “without much trouble” that the president can take military action against North Korea without congressional authorization).

16 Jim Mattis & Rex Tillerson, We're Holding Pyongyang to Account, Wall St. J. (Aug. 14, 2017), at https://www.wsj.com/articles/were-holding-pyongyang-to-account-1502660253 (also available at https://www.state.gov/secretary/remarks/2017/08/273409.htm).

17 Id.

18 Id.

19 See Security Council Toughens Sanctions Against Democratic People's Republic of Korea, Unanimously Adopting Resolution 2371 (2017), United Nations (Aug. 5, 2017), at https://www.un.org/press/en/2017/sc12945.doc.htm.

20 S.C. Res. 2371, paras. 8–10 (Aug. 5, 2017).

21 Jane Perlez, China's Crackdown on North Korea Over U.N. Sanctions Starts to Pinch, N.Y. Times (Aug. 16, 2017), at https://www.nytimes.com/2017/08/16/world/asia/china-north-korea-seafood-exports.html?ref=todayspaper.

22 S.C. Res. 2375, para. 1 (Sept. 11, 2017).

23 White House Press Release, Press Briefing by Press Secretary Sarah Sanders, Nat'l Security Advisor H.R. McMaster, and U.N. (Sept. 15, 2017), at https://www.whitehouse.gov/briefings-statements/press-briefing-press-secretary-sarah-sanders-national-security-advisor-h-r-mcmaster-u-n-ambassador-nikki-haley-091517 [https://perma.cc/A9CP-QN5B].

24 S.C. Res. 2375, supra note 22, paras. 13–16.

25 Security Council Further Tightens Sanctions Against DPR Korea, United Nations (Dec. 22, 2017), at http://www.un.org/apps/news/story.asp?NewsID=58345#.Wkv_FVQ-fu1.

26 S.C. Res. 2397, paras. 4–8 (Dec. 22, 2017) (identifying certain exceptions to the prohibitions, including an initial crude oil cap of four million barrels per year and refined petroleum cap of 500,000 barrels per year).

27 Id., para. 9.

28 Id., para. 8 (excepting dual citizens and North Korean nationals “whose repatriation is prohibited, subject to applicable national and international law, including international refugee law and international human rights law, and the United Nations Headquarters Agreement and the Convention on the Privileges and Immunities of the United Nations”).

29 Russel Goldman, North Korea Calls U.N. Sanctions an ‘Act of War, N.Y. Times (Dec. 24, 2017), at https://www.nytimes.com/2017/12/24/world/asia/north-korea-un-sanctions.html.

30 Matina Stevis-Gridneff & Ian Talley, U.S. to Ease Sanctions Against Sudan After It Cuts Ties with North Korea, Wall St. J. (Oct. 6, 2017), at https://www.wsj.com/articles/u-s-to-ease-sanctions-against-sudan-1507311816; see also Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 100 (2018).

32 Id.

33 Karen DeYoung, Ellen Nakashima & Emily Rauhala, Trump Signed Presidential Directive Ordering Actions to Pressure North Korea, Wash. Post (Sept. 30, 2017), at https://www.washingtonpost.com/world/national-security/trump-signed-presidential-directive-ordering-actions-to-pressure-north-korea/2017/09/30/97c6722a-a620-11e7-b14f-f41773cd5a14_story.html?utm_term=.e3a9c97b8dde.

34 Exec. Order No. 13,810, 82 Fed. Reg. 44,705 (Sept. 20, 2017).

35 Id. at 44,706–07.

36 White House Press Release, Steven Mnuchin, U.S. Treas. Sec'y, Press Briefing (Sept. 21, 2017), at https://www.whitehouse.gov/briefings-statements/press-briefing-treasury-secretary-steven-mnuchin-092117 [https://perma.cc/Z7N5-DJ92]. On September 26, 2017, the U.S. Treasury Department used its authority pursuant to Executive Order 13,810 to sanction “eight North Korean banks and 26 individuals linked to North Korean financial networks.” U.S. Dep't of Treas. Press Release, Treasury Sanctions Banks and Representatives Linked to North Korean Financial Networks (Sept. 26, 2017), at https://www.treasury.gov/press-center/press-releases/Pages/sm0165.aspx [https://perma.cc/7KE6-CX4G].

38 Proclamation No. 9645, 82 Fed. Reg. 45,161, 45,166 (Sept. 24, 2017); Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 109 (2018).

39 U.S. Dep't of State, State Sponsors of Terrorism, at https://www.state.gov/j/ct/list/c14151.htm [https://perma.cc/EL9U-RHGP]. North Korea had been previously designated a state sponsor of terrorism, but that designation ended in 2008. See John R. Crook, Contemporary Practice of the United States, 103 AJIL 164 (2009).

40 See U.S. Dep't of State, Bureau of Counterterrorism and Countering Violent Extremism, Country Reports on Terrorism 2016, at ch. 3 (2016), available at https://www.state.gov/documents/organization/272488.pdf [https://perma.cc/JV22-HW5G].

41 Donald J. Trump, Remarks Prior to a Cabinet Meeting, 2017 Daily Comp. Pres. Doc. 1 (Nov. 20, 2017).

42 U.S. Dep't of State Press Release, Rex W. Tillerson, U.S. Sec'y of State, Remarks at a Press Roundtable (Sept. 30, 2017), at https://www.state.gov/secretary/remarks/2017/09/274563.htm [https://perma.cc/57Z8-3AVX].

43 U.S. Dep't of State Press Release, Rex W. Tillerson, U.S. Sec'y of State, On Meeting the Foreign Policy Challenges of 2017 and Beyond (Dec. 12, 2017), at https://www.state.gov/secretary/remarks/2017/12/276570.htm [https://perma.cc/H4QE-MEWT].

44 Id.

45 U.S. Dep't of State Press Release, Rex W. Tillerson, U.S. Sec'y of State, Remarks at the UN Security Council Ministerial Meeting on D.P.R.K. (Dec. 15, 2017), at https://www.state.gov/secretary/remarks/2017/12/276627.htm [https://perma.cc/R7VS-SCXC].

46 Donald J. Trump ), Twitter (Oct. 1, 2017, 7:30 AM), at https://twitter.com/realDonaldTrump/status/914497877543735296.

47 Adam Taylor, 3 Big Questions About North Korea and No-Precondition Talks, Wash. Post (Dec. 13, 2017), at https://www.washingtonpost.com/news/worldviews/wp/2017/12/13/3-big-questions-about-north-korea-and-no-precondition-talks/?utm_term=.90926c0bd714.

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