The new 2022 nuclear use law of the Democratic People’s Republic of Korea (North Korea), an updated version of the 2013 nuclear strategy, along with North Korea’s New Year’s resolution of an “exponential” increase in the country’s nuclear weapons and development of ICBMs, will worsen regional as well as international stability. Due to its implications on regional and global security, the new law received sharply negative international reactions. For instance, UN Secretary-General António Guterres expressed his deep concerns about the new law, calling it “escalatory and destabilising” and urged Pyongyang to resume denuclearisation talks. The United States pledged to continue its deployment of strategic assets and exercises in response to North Korea’s threats. And China, North Korea’s ally, responded with no change in its long-standing commitment towards the denuclearisation of the Korean Peninsula. After all, the new nuclear use law may provide North Korea with some flexibility in employing nuclear force—from pre-emption to retaliation—which could strengthen deterrence, but it could prove detrimental to regional security in the long run.

The nuclear use law, promulgated on 8th September 2022, serves two purposes. One, it establishes an “irreversible” nuclear-armed status and projects an image of a “responsible nuclear-weapons state” for North Korea, whose nuclear forces have wider objectives ranging from “defending the sovereignty, territorial integrity, and fundamental interests of the state” to “preventing a war on the Korean Peninsula and in Northeast Asia” while purportedly “ensuring the strategic stability of the world”. North Korea’s pledge not to share and transfer weapons-grade nuclear materials, nuclear weapons, technology, and equipment is a reiteration of this image.

The declaration of a state’s nuclear doctrine in the form of a defence white paper, nuclear posture review, key statements, laws, etc. is a common practice that nuclear-armed states follow to distinctly communicate to allies and adversaries their deterrent posture, thereby, to some extent, reducing ambiguity. The proclamation of this new nuclear law clarifies Pyongyang’s nuclear doctrine, like other nuclear-armed states’ defence white papers or nuclear posture reviews; thus, North Korea is trying to build its reputation among the nuclear-armed states by following standard practices. In addition, like other nuclear-armed states, the law aims to protect and bestow “monarchic power” to Kim Jong Un’s regime. For instance, the North Korea’s constitution authorizes the first chairman of the National Defence Commission or the supreme leader to proclaim a state of war. In the US, only Congress has the power to declare war, but the US is an exception here. In India, the president can declare war upon the advice of the council of ministers. In France, the president can declare war after consultation with the prime minister, heads of assemblies, and the constitutional council. In Russia, the president can declare war and inform the Council of Federation and the Duma. And in China, the president can declare war unilaterally.

Two, the law clearly lays out two missions for North Korea’s nuclear forces: deterrence and use/repellence. The law states two conditions under which nuclear weapons can be used: 1) in case of an impending attack on strategic assets including leadership – therefore as nuclear pre-emption/first use; 2) in case of a need for “taking initiative in war” (this clearly demonstrates the applicability of nuclear weapons for initiative dominance instead of war termination). The first condition indicates a lowering of the nuclear threshold, thus entailing a lack of escalation control, which is a disturbing trend for crisis stability in the region. In addition, the curse of nuclear first use is gradually pervading into international security, and the dangerous “first use” doctrine gains traction with this law. The no-first-use (NFU) doctrine is already on shaky ground. Notice, for instance, the troubled Indian NFU policy and Pakistan’s ambiguity on its first use/NFU policy. Its apparent belief in achieving victory after nuclear use reflects North Korea’s belief in escalation control, and the nuclear use law recklessly communicates North Korea’s willingness to take risks.

To have the ability to carry out nuclear attacks, North Korea possesses and is developing a diverse range of qualitative strategic capabilities. This includes: 1) ballistic missiles with different ranges consisting of short-range, intermediate-range, and intercontinental ballistic missiles; 2) exponential production of nuclear weapons including super-sized as well as miniaturized warheads; 3) precision capability with a range of 15,000 km; 4) hypersonic delivery vehicles; and 5) nuclear-powered submarines as an underwater-launch strategic weapon. Pyongyang carried out a record number of missile tests (about 95, including tests of ballistic and other missiles) last year as “nuclear and missile brinkmanship” in response to international sanctions. Over time, its missile inventory has become more sophisticated with the introduction of solid-fuel rockets, including a solid-fuel ICBM, multiple re-entry vehicles, sea-launched ballistic missiles, cruise missiles, and hypersonic missiles. Together, this inventory would provide several advantages of survivability, prompt launch, concealment, defence evasion, precision, and enhanced penetration. These advantages tend to enhance the credibility of nuclear missions laid out in the law.

In contrast to earlier caveats attached to its nuclear first-use policy, the new law plainly advocates for first use or a pre-emptive nuclear strike that is antithetical to South Korea’s enhanced deterrence based on its Three-Axis. South Korea’s Three-Axis system, designed in 2016, has three components: preemption against a source of attack (kill chain strategy), interception of incoming missiles, and decapitation by striking North Korea’s regime and key military sites. Furthermore, the US and the Republic of Korea (ROK) restored the bilateral Extended Deterrence Strategy and Consultation Group (EDSCG) in May 2022, followed by an announcement in August 2022 of the possibility of deploying US strategic assets on the Korean Peninsula if North Korea conducted more nuclear tests. Together, these developments emboldened and provoked Pyongyang to respond with both deterrence and new use doctrines.

Three caveats are attached to pre-emption. One, a state can defend its pre-emption strategy on the premise of self-defence, however, this brings with it a bad reputation affecting a state’s future interaction with other states. In the Korean Peninsula strategic environment, two pre-emptive strategies are at loggerheads; hence, both Koreas have lost reputation as well as heightened regional and international security anxiety by adopting pre-emption policies. Moreover, the nuclear law elevated the logic and practice of nuclear pre-emption by asserting that threats on the Korean Peninsula are undeterrable, a stance which tends to undermine the development of global norm governance. Two, the goal for the Korean Peninsula should be to keep both (South Korean and North Korean) pre-emptive strategies at bay; therefore, an early warning and threat assessment system is key. North Korea has limited capabilities in detecting and assessing a small-scale operation involving cruise missiles launched by the US and ROK; however, the emphasis on immediate execution of a nuclear launch in the nuclear use law insinuates a high level of readiness that either North Korea’s nuclear posture possesses or that North Korea is aiming to acquire.

Three, with pre-emption along with the development of tactical nuclear weapons, the possibility of pre-delegation exists; however, one needs to weigh this possibility against the personality traits of Kim Jong-un, who has been ruling the country and its strategic assets with little or no evidence/tendency of sharing or delegating his power to press the button. This can be re-assuring as it acts against the perils of pre-delegation, but at the same time, it’s dangerously precarious having such a diverse and exponentially expanding nuclear force under one man’s total control and in the absence of any democratic control of and existence of a pre-delegation mechanism. The line of succession as well as members/offices involved in nuclear decision-making is not identified in the law, contrary to the National Command Authority (NCA) Act of Pakistan which clearly elucidates the composition of the Authority with members that are relevant to this kind of decision-making. Still, North Korea’s law suggests assured retaliation based on a decided and rehearsed operation or plan, such as a “dead hand” execution in which someone other than Kim would press the nuclear button.

More so, the words “automatically” and “immediately” imply pre-delegation, the existence of rehearsed worst-case scenarios, advanced early warning systems, and prompt deployment and activation of a nuclear response. The first use doctrine could increase the risks of miscalculation, despite the fact that the point of legalisation of nuclear weapons use is to minimise the chances of nuclear war based on miscalculations and misuse. Also, delegation would improve survivability against a decapitation strategy, but it could increase the threat of lower command going rogue against Pyongyang’s leadership. However, given Kim Jong-un’s ability to maintain his position as supreme leader and balance his roles between the Korean Workers’ Party (KWP) and the Korean People’s Army (KPA), the likelihood of a coup against his orders or rule seems a distant possibility.

Overall, the new nuclear use law puts North Korean nuclear policy in harmony with the nuclear strategy and posture of other nuclear-armed states by stipulating the role of nuclear weapons in the country’s national security strategy, the conditions for nuclear launch, and the possibility of a delegation of launch authority. It can be argued that the flexible approach stipulated in the law could strengthen North Korea’s deterrence vis-à-vis its adversaries. Nevertheless, the new law dangerously escalates tensions in the region and increases the chance of a devastating miscalculation.

The regional strategic environment is increasingly held hostage to the pre-emption strategies of both Koreas. This undermines regional security. Caution is now called for on the part of the US and South Korea; these two allies must manoeuvre through regional politics carefully in order to not trigger any nuclear response by North Korea.

About the Author

Dr Salma Shaeen is currently teaching at the Department of Defence Studies, King’s College, London. She specializes in nuclear command and control and is the author of Nuclear Command and Control Norms. Dr Shaheen regularly contributes to national and international newspapers and magazines. Her areas of research include but are not limited to the impact of disruptive technologies, nuclear non-proliferation, international security & deterrence, and strategic communications. Prior to starting her PhD at King’s, she worked as Assistant Director (research) at the Arms Control and Disarmament Affairs directorate, Strategic Plans Division.

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Image: The Mass Games in Pyongyang. Flickr/Roman Harak