More on the Missile Test

March 19, 2012 7:00 AM

In a post on Friday we made three simple points:

  • The international legal trail at the UN Security Council, as well as the terms of the February 29 deal, seem pretty unambiguous. The Security Council has asked North Korea to cease and desist with respect to missile testing, China signed on to this consensus, and UNSC 1874 seems to put the definitional issue (missiles vs. satellites) to rest by calling on North Korea not to conduct “any launch using ballistic missile technology”;
  • It was inconceivable to us that this point was not also communicated to the North Koreans in the context of the February 29 deal nor that they could have possibly failed to understand it. This has subsequently been confirmed to us by Chris Nelson and one other person with direct contact with those involved in the negotiations. We are not making this up.
  • The interesting issues thus reside in understanding why it happened. We laid out three theories:
  • That the February 29 deal was effectively vetoed by powerful groups in the military or elsewhere;
  • That it’s all about inexperience; Kim Jung Un was sold a bill of goods by advisors who thought they could exploit the missile-satellite issue and get away with it;
  • That this was completely calculated; Kim Jong Un knew the risks but rolled the dice in an effort to have it both ways (domestic political benefits of the launch plus substantive benefits of the deal).

That said, an extremely interesting conversation among the invisible college of North Korea watchers, effectively organized by Chriis Nelson, has raised some important substantive questions about international law, the extent to which a missile and SLV (space-launched vehicle or simply "satellite") test can be equated, and what the technological spinoffs are of the one for the other. Although we are skeptical of the relevance of some of these arguments, they come from informed people and we reproduce some of the debate. We have been given permission to name names. This group also had very interesting things to say about possible North Korean reasons for doing what they are doing, which we also pass on.

Dan Pinkston (International Crisis Group, Seoul) reminded us that Article 1 of The Outer Space Treaty is pretty clear that  "Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies." Peter Hayes provided us with a copy of a KCNA report on a White Paper on space that makes the North Korean legal brief in detail; we reproduce it below. As predicted, the North Koreans have invoked just such a right to test and have vehemently rejected foreign complaints about it.

Hayes raises the important question of whether the UN Security Council resolutions on North Korea can legally curtail North Korean rights to a satellite launch. Clearly, the UN Security Council is vested with very broad powers under Chapter VII of the UN Charter, although there is extensive debate over what Chapter VII allows; we will return to this issue in future posts. Article 39 reads in full:

“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”

One reason for this ambitious scope: the veto power of the P5 meant it would only be exercised when there was unanimity—or at least acquiescence—among the US, Soviet Union/Russia, China, France and Britain. The same constraints hold today.

Second, the actions which the UNSC can take under Article 41—authorizing actions short of force—are also broad:

“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”

UNSCR 1874 was adopted under Article 41. Among the rights curtailed in 1874 were trade in proscribed products that did not in fact violate any of North Korea’s existing international commitments; for example, North Korea is not a member of the Missile Technology Control Regime.  But such actions are—at least in principle—allowed under Article 41.

However, both Peter Hayes (Nautilus) and Dan Pinkston rightly point out that there is squeamishness on this issue, and not simply on the part of the Chinese. Although UNSC 1874 passed unanimously, several non-permanent members of the UNSC apparently felt uncomfortable because of fear it could establish the precedent for denying other states space launch rights.

Daniel Joyner has a paper on the Nautilus website International Responses to WMD Proliferation that calls the legal foundation for such restrictions into question. He argues that there are existing treaties and regimes—including the NPT and the export control regimes—that provide rules for handling derogations. Beyond those treaties and regimes, international consensus has not effectively been forged but has been ad hoc; Joyner believes these ad hoc actions overstep the law.

However, as Joyner also notes the “treaties and regimes” approach suffers from a debilitating flaw: that compliance is voluntary. For example, the NPT is effective precisely vis-à-vis states where it is not needed (Switzerland) and ineffective vis-à-vis those for which it is needed (Iran and North Korea). Thus the appeal of moving outside of the “treaties and regimes” approach either through UNSC Chapter VII actions or other instruments such as UNSC 1540, which seeks to control transfer of WMD-related materials to non-state actors.

We take these issues seriously; there are advantages in robust law. But we also take politics seriously, and not in the typical sense in which it is used as a dirty word.

In the absence of enforceable law, international agreements must be self-enforcing; this involves the capacity to make credible commitments (and on both sides; we have been clear that the US record in this regard is hardly beyond reproach). The reason the US is upset about the announced satellite/missile launch is not because it is in violation of a string of Security Council resolutions; that strikes us as a red  herring, legalism run amok.

The reason the US is upset about it is because it violates a bilateral commitment that the North Koreans undertook. As noted above, we found it implausible that the North Koreans did not know that the US would see a satellite test as a violation of its commitments; per above, this has subsequently been confirmed to us. The fact that they have a right to test is thus immaterial. We have many rights that we do not exercise. Self-restraint is a component of getting things done diplomatically—and in life more generally. This is not about the law.

A further issue is the extent to which a SLV and a missile can simply be equated, and here we are more sympathetic to the critics. Again, Nautilus provides some resources. Lew Franklin and Nick Hansen reach the following conclusions: “The oft-repeated phrase ‘easily convertible to an ICBM’ posed by non-technical policy experts is engineering-wise unsupportable, and probably militarily unacceptable to the North Korean leadership.  Conversion of an IRBM or ICBM to a SLV is easy and was the initial route to space by every country with tactical missiles.  Conversion of the Unha-2 SLV to an ICBM requires considerable redesign and testing, and no country has taken this route. It is our conclusion that the suspected DPRK ICBM is non-existent, or has yet to move into the testing phase.  Our study strongly suggests that the international intelligence community re-evaluate their current conclusions."

Mark Fitzpatrick—whose good work at the IISS we have highlighted before (here)--is a little more circumspect, and inverts the inference. Rather than saying that a SVL cannot be converted to a missile, he notes the externalities that SLVs can generate for missile programs. His brief comment is worth citing on the point:

“Space launches differ from ballistic-missile tests in their purpose and trajectory. Where space launches only need to go up, ballistic missiles must also come down, to securely deliver their payload, and need to survive atmospheric re-entry. The 2011 IISS Strategic Dossier on North Korean Security Challenges describes the differences in detail (p. 155). But because satellite-launch rockets and ballistic missiles share the same bodies, engines, launch sites and other development processes, they are intricately linked. The satellite launch also provides missile-development information regarding propulsion, guidance and operational aspects.”

But Fitzpatrick would seem to agree that a satellite and missile launch cannot simply be conflated. Again, though, whether this is politically relevant is a separate issue.

Two more questions, one on the politics, the other on the economics. Dan Pinkston offers up an interpretation of events that is even more cynical than the ones put forward here: that they reached the deal in order to scuttle it. Here is the logic:

  • You reach the agreement, understanding that the US would be upset if you tested;
  • You then announce the test;
  • The US scuttles the deal;
  • You “win” because the sequence of events proves that the US “hostile policy” remains intact…
  • …thus justifying keeping the weapons that you have developed.

Pinkston related exactly this cycle in a paper on the 2009 missile launch. In a forthcoming paper, he will cite more chapter and verse about the long-standing policy of being a kangsŏngdaeguk or strong and prosperous country, which requires having a deterrent. Whether this strategy is successful or not is another issue, but if regime survival is your objective then it certainly has been; Dan and I have jointly cast our doubts on the “collapsists” in an interview for Asia Policy.

Finally, we should note that there is very little economic rationale for conducting such a test, as the North Koreans have claimed. (“The upcoming launch will greatly encourage the army and people of the DPRK in the building of a thriving nation and will offer an important occasion of putting the country’s technology of space use for peaceful purposes on a higher stage.”) One possible exception noted by Hayes: disaster-response related usage of space-based imagery.

The absence of a defensible economic rational is one reason why we are highly skeptical about putting space cooperation on the table as a political sweetener; see our discussion of the SAIS report on this issue. If North Korea wants to build white elephants, it is the regime’s sovereign right. But we should not be complicit by extending incentives that magnify the distortions that have brought the country to economic ruin.  Jack Pritchard had this one exactly right: the appropriate thing to say about North Korean white elephants is "fund it yourself." If we can make progress on the nuclear issue and the North Koreans want to build an LWR or launch satellites, fine. But don't ask us to pay for them. We should be offering the North Koreans quid pro quos that minimize, not maximize, the multiple economic distortions that have effectively destroyed the country over the last 20 years.

Space Is Common Wealth: KCNA White Paper

Pyongyang, November 29 (KCNA) -- The Korean Central News Agency released white paper "Space Is Common Wealth of Humankind" Monday.

Referring to the global trend for space development, the white paper disclosed the U.S. ambition for space monopolization aimed at world domination.

It said:

Different countries and nations regard it as their strategic goals to advance into vast space, which serves as a powerful engine propelling the future development of science and technology as well as economy.

Space technologies have made leaping progress in various fields including telecommunications, public health, seed production and energy whose achievements have opened up the prospect for the effective use of space for human civilization and development.

New economy called space economy is thriving encompassing the production of all kinds of goods and services in the course of space activities.

The competition for space development gained fresh momentum among countries in recent years.

Last year a total of 118 space modules were launched by carrier rockets into their orbits to go around the earth.

Even developing countries buckled down to the activities to conquer space, injecting fresh vitality into the worldwide competition for space development.

The DPRK joined the Outer Space Treaty and the Convention on Registration of Objects Launched into Outer Space. It successfully launched satellite Kwangmyongsong-2 by rocket carrier Unha-2 into the space on April 5, 2009 after going through the procedures concerning international law.

The U.S. and its allies, by abusing the UN Security Council, took issue with the DPRK's peaceful satellite launch.

Members of the U.S. House of Representatives recently submitted a bill banning the DPRK, China and some other countries from launching satellites.

This is aimed to bar the sovereign countries from making legitimate advance into space, and monopolize it.

The U.S. has long spurred the scenario for converting the space into the theatre of a war for realizing its strategy for world domination.

It openly disclosed its ambition for monopolizing the space in the new century.

After the September 11 incident, the U.S. announced a "war on terrorism" and began advocating new "space military principle".

On December 13, 2001 the then U.S. President Bush announced its unilateral withdrawal from the 1972 ABM treaty.

Since then it has opted for removing stumbling blocks in the way of developing space weapons and buckled down to putting its scenario for a space war into practice.

After officially formulating space monopolization as its national policy, the U.S. unhesitatingly put into practice its strategy for putting the world under its control with the use of space.

In October 2006 the U.S. made public "national space policy" to the effect that it rejects any international disarmament agreement that may deter it from making military advance into space and using it, and that it has the right to prevent those countries hurting the U.S. interests from advancing into space, if necessary.

The U.S. actually used space technologies for fighting a "war on terrorism" and other aggression wars, revealing its moves for using the space for the purpose of military aggression.

The U.S. attempt to use the space for military purposes geared to holding hegemony will harass global peace and jeopardize human existence.

No one can check the trend of the times toward the exploration of space for prosperity common to humankind and peaceful purposes.

Comments

Jared Genser

This is an excellent summary of the state of play, both legally and politically. Nevertheless, I think it is important to explain the legal issues in further detail as they relate to Security Council Resolution 1874, which among other operative provisions "[d]ecides that the DPRK shall suspend all activities related to its ballistic missile programme and in this context re-establish its pre-existing commitments to a moratorium on missile launches." While there are also political issues at play, I do think the DPRK's legal prohibition under international law from conducting further ballistic missile launches is significant. The sequencing of the arguments is as follows: 1. Resolution 1874 was adopted under Chapter VII of the UN Charter, which makes it a binding decision of the UN Security Council. 2. Under Article 41 of the UN Charter "The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures." The Security Council has exclusive jurisdiction to make such a decision about what is necessary to promote international peace and security and address what the Council considers a "threat to the peace." 3. Both under the UN Charter and based on the jurisprudence of the International Court of Justice in its Libya and Namibia cases, there is no body with the power of judicial review over decisions of the Security Council. 4. Article 25 of the UN Charter states "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter." This obligates the DPRK to implement this decision. 5. Article 103 of the UN Charter states "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." This is the UN Charter's built-in supremacy clause. 6. The DPRK has absolutely obtained both rights and duties from other international treaties, such as the Outer Space Treaty (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon
and Other Celestial Bodies). 7. Nevertheless, the DPRK's obligations under Article 103 of the UN Charter supersede the operation of any other international treaty. Indeed, the Outer Space Treaty itself says in Article 3: "States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the Moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations . . ." This only reaffirms the power of the Security Council under Article 103 to supersede any state's rights and duties provided to any country under the Outer Space Treaty providing that state is also a member of the United Nations. 8. Therefore, the DPRK's obligation to suspend its ballistic missile program and reestablish its moratorium on testing flows directly from its obligations under the UN Charter. Those Charter duties supersede any other rights and duties provided by other treaties to which the DPRK is a party. While I understand a general level of skepticism by DPRK watchers regarding the relevance of international law arguments in this debate, there is a healthy interrelationship between the law and politics here. The political arguments of various countries opposed to further testing are only strengthened by the clarity of international law on the DPRK's obligations to refrain from future testing. The Security Council alone can interpret the meaning its ascribes to any specific resolution, and that interpretation can change over time. Nevertheless, the fact that Resolution 1874 was adopted unanimously, including with support from China and the Russian Federation, makes it very difficult politically for there to be any other interpretation offered of the launch than that it is in flagrant violation of Resolution 1874. Jared Genser
Adjunct Professor of Law
Georgetown University Law Center [I teach a seminar entitled the UN Security Council in the 21st Century: Operations, Impact, and Reform].

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