On December 12, 2012, after 14 years of trials and failures, North Korea finally put a satellite into orbit around the Earth. The Unha-3 rocket used to deliver this payload—which was ostensibly launched for weather tracking purposes—is functionally equivalent to a ballistic missile, and South Korea was quick to note that its successful launch proves that Pyongyang can now reach targets at a distance exceeding 10,000 km (6,200 miles), putting much of the western coast of the continental United States within striking distance.
On January 22, 2013, the UN Security Council swiftly passed Resolution 2087, which condemned the launch. North Korea has since expressed its firm determination to continue pursuing its nuclear program.
Some experts warn that North Korea is only a few years away from mounting a nuclear warhead on a missile. Others doubt its technological capabilities. Indeed, less than a week after the launch of the Unha-3, U.S. astronomers pointed out that the celebrated satellite appeared to be “dead” and “tumbling” through its orbit.
Although the Unha-3 satellite itself may pose no direct threat, it is likely part of a long-term strategy to further develop Pyongyang's ballistic missile capabilities. If North Korea launches an improved Unha-3, -4 or -5 rocket later this year, could the U.S. preemptively shoot it out of the skies? Would it?
While the U.S. undoubtedly has the capacity to destroy a North Korean satellite, may it legally do so? Under international law, the answer is less than straightforward.
Pyongyang is already in breach of UN Security Council Resolutions 1718 and 1874, which broadly provide that North Korea must refrain from launching ballistic missiles. Adopted unanimously in October 2006, Resolution 1718 imposed sanctions on North Korea following its nuclear test earlier that year. The Resolution states that North Korea “must not conduct any further nuclear test or launch of a ballistic missile.” Resolution 1874, adopted unanimously in June 2009, imposed further sanctions and obligations on Pyongyang following another nuclear test in May 2009. That resolution authorizes states to inspect North Korean cargo on land, sea and air, and to destroy any goods suspected of being connected to its nuclear program.
But it’s not clear whether Resolution 1874 extends to outer space. If so, it could provide a legal basis for the U.S. to "seize and dispose of" a suspicious North Korean satellite. If not, Pyongyang may get a free pass for future space launches.
A more controversial legal justification for the destruction of North Korean space technology is the doctrine of anticipatory self-defense. Article 51 of the UN Charter, which governs (and largely prohibits) the use of force to settle international conflicts, affirms the "inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations." Unlike many other nations, the U.S. has long held that, consistent with Article 51 and customary international law, a state may use force in self-defense if it has been attacked or if an armed attack is legitimately deemed to be imminent.
Imminence is a thorny concept, however.
As anyone who has seen "Dr. Strangelove" can grasp, once a nuclear attack is underway, it may be too late to take effective self-defense measures. But short of an immediate threat, where should a state draw the line between so-called legitimate anticipatory self-defense, which seeks to preempt a truly imminent attack, and illegitimate measures that merely seek to prevent a possible—but by no means certain—threat? Recent debates about the preemptive use of force are not much help. Advocates of the 2003 invasion of Iraq studiously avoided Article 51, relying instead on Iraq's violation of several Security Council Resolutions as grounds for war. Current discussions about the murky legality of an attack on Iranian nuclear facilities are more on point, although, according to the U.S. itself, Iran does not have nuclear weapons, could not build a nuclear weapon anytime soon, and is not currently trying to do so.
North Korea is different. The country has already tested nuclear weapons, and now has a ballistic missile at least theoretically capable of delivering a nuclear warhead, if it were ever to acquire one, to U.S. soil and some of its allies, such as South Korea and Japan. With these facts in mind, could President Obama legally shoot down a North Korean satellite even if he lacked intelligence that conclusively demonstrated a nuclear payload? Perhaps.
But should he?
Destroying a North Korean satellite may be explicitly legal under certain readings of Resolution 1874 or implicitly authorized by the controversial doctrine of anticipatory self-defense, but President Obama must nevertheless consider the wider geopolitical, diplomatic and military consequences of such a brazen act.
The U.S. has been widely criticized for justifying its military operations, from the 2003 Iraq invasion and the indefinite detention of terror suspects to recent drone attacks and targeted killings, on shaky legal foundations. To extend such precedents to outer space could inadvertently encourage other nations to militarize and accelerate their space programs, inviting new and dangerous forms of international conflict while saddling the U.S. with the largely thankless and extremely costly task of patrolling the outer boundaries of the exosphere, as it now does the world's major sea lanes. The tough work of diplomacy and international law, though frustratingly slow and fraught with uncertainty, is a far better way forward
Lucas Bento is an attorney at an international law firm in New York, specializing in international disputes and international arbitration. Daniel Firger is an attorney at an international law firm in New York and a former postdoctoral research scholar at Columbia Law School.