The Legal and Policy Implications of Ambiguous Rocket Launches: Learning from the North Korean Case

Given North Korea’s possession of missiles able to strike Japan, Pyongyang’s April 5, 2009, attempt to orbit a satellite using a trajectory that passed over Japanese territory created ambiguity that might have caused Japan to believe it was under attack. How can the international community determine a state's intent in launching rockets and missiles, be it peaceful space exploration or weapons development? What are the rights of states to launch missiles under international law and how may overflown states and their allies respond if threatened?

On May 18, 2009, the James Martin Center's Washington, DC Office and the Georgetown University Institute for Law, Science and Global Security sponsored a panel discussion to examine the legal and policy implications of ambiguous rocket launches. The panel featured: Mr. Benjamin Baseley-Walker, Legal and Policy Consultant for the Secure World Foundation, Dr. Bruce MacDonald, Senior Director, Strategic Posture Review Commission, and Dr. Catherine Lotrionte, Associate Director of the Georgetown Institute for Law, Science and Global Security.

The panelists addressed the technical challenges the international community faces in identifying the purpose of a missile, rocket, or other spacefaring projectile. The intent of a state in launching such a projectile is of central importance in determining the legality of the launch and how other states may respond. The panel reached the conclusion that it is effectively impossible to distinguish between a peaceful space launch vehicle, such as a rocket designed to carry a communications satellite into orbit, and a missile designed for military purposes, such as the delivery of nuclear warheads. The same rocket technology can, and often is, used for both purposes.

The panelists also considered the status of rocket launches under international law. The UN Outer Space Treaty grants all states the right to explore space for peaceful purposes, including placing a satellite into orbit. Therefore, if a state, through the presentation of intelligence information, cannot prove a particular rocket launch is intended for non-peaceful purposes, the launch itself cannot be considered illegal. However, regardless of the intent of the launch, a state may have a right to respond with force in self-defense. A state whose territory or territorial sea is overflown or whose airspace is violated by a rocket may, pursuant to UN Charter Article 51, use force in self-defense, including the interception and destruction of the rocket. This right may also be exercised collectively with allies.

Finally, the panelists made policy recommendations for states launching rockets. Launching states should explain the purpose of their launches, provide the international community with advanced notice of a launch, make reasonable attempts to avoid overflying another state's territory, consult with nearby states to ensure launch safety, and ensure command and control mechanisms are in place that will allow it to maintain control over any spacefaring projectiles it launches.