The Korean Space Race
At the end of 2023, we enter a new phase of competition and proxy war on the Korean Peninsula in what could be dubbed the Korean Space Race. Kim Jong-un, the mercurial North Korean leader, has long prioritized placing military spy satellites over the Korean Peninsula. Yet North Korea’s space capabilities have lagged considerably behind its leader’s enthusiasm for space assets. This post discusses North Korea’s space ambitions, its setbacks and recent success, reactions to North Korea’s launches, and the law regarding possible satellite interference.
Valiant Efforts
Earlier this year, North Korea attempted to place a satellite into orbit. However, its May 31 launch was a failure and Kim Jong-un said it was “irresponsibly” planned. The country’s first military satellite was meant to spy on other countries, especially South Korea, Taiwan, and the U.S. territory of Guam. Due to a malfunction, it crashed into the sea off the west coast of South Korea while setting off alarms and an evacuation order in Seoul. This failure was met with harsh criticism, national embarrassment, and an order from the ruling Workers’ Party to try again.
If successful, the spy satellite would have been a boon to North Korea’s military efforts and potentially a guide for its nuclear arsenal. U.N. Security Council resolutions prohibit North Korea from launching rockets for its space program, not that this has stopped North Korea’s efforts to put a satellite in orbit. Russia and China have blocked further potential resolutions, but this has not prevented subsequent sanctions based on further launches.
Five weeks after the botched launch in May, South Korea recovered “key components” among the debris from North Korea’s botched launch and determined the satellite would have been inoperable as a spy satellite due to its crudeness. South Korea and the United States determined that the satellite “had no military use at all as a reconnaissance satellite.” If successfully launched, it might have been used as propaganda to boost Kim Jong-un’s image at home. In response to the first launch, President Biden, Yoon Suk Yeol, and other regional leaders agreed to expand regional military drills, including the arrival of a “nuclear capable” submarine to visit South Korea.
In mid-August 2023, North Korea tried and failed again to launch a military reconnaissance satellite. After triggering a “take cover” order in Okinawa, the launch failed due to a blast system malfunction. South Korea again condemned the launch as a violation of standing UNSC resolutions meant to prohibit the testing of technology that could be used for ballistic missiles. Kim Jong-un proclaimed his country would retry the launch in October.
Third Time’s a Charm
On 21 November 2023, North Korea finally succeeded in putting its first military spy satellite in orbit with aid from Russia. North Korea reportedly provided badly needed munitions to Russia for its war with Ukraine, while Russia helped North Korea’s hobbled satellite program. The Chollima-1 rocket launched the Malligyong-1 satellite intended to observe U.S. and South Korean military movements in the region. Kim Jong-un reportedly saw aerial photos from the satellite over Andersen Air Force Base and other bases on Guam days after the successful launch.
One day after North Korea’s successful launch, South Korea said it would no longer abide by an agreement for a no-fly zone near the Korean border. North Korea said it would shred the 2018 agreement ending hostilities and resume surveillance flights near the border. Following analysis, South Korea said it would need time to know if North Korea’s satellite is functioning properly. Early reports suggest that high-resolution imagery would not be possible for North Korea or useful for its military.
Post-Launch Fallout
The successful placement of Mallingyong-1 into orbit could provide North Korea with a survivable nuclear deterrent. On the other hand, it could also prove to Kim Jong-un that any alleged attack by the United States and South Korea is implausible. Earlier this month, South Korea kept pace with its northern neighbor by launching its own first military spy satellite aboard a SpaceX Falcon 9 rocket.
In the latest space development from the Korean peninsula, North Korea threatened that any interference with its satellites would be a declaration of war. Pyongyang threatened military options against U.S. satellites following any interference with its strategic space assets. A U.S. Space Command spokesperson confirmed that Washington could interrupt Malligyong-1’s spy operations “using a variety of means” but stated no intention or plans to interfere with North Korean space assets.
Space Law
The Outer Space Treaty (OST) of 1967 provides the legal foundation for safe and peaceful operations in outer space. Most countries in the world are parties to the OST (114 out of 193), including the major spacefaring countries, while an additional 22 countries have signed but not yet ratified the treaty. While the United States and South Korea have ratified the OST, North Korea has not, thus ordinarily the terms of the OST would have no binding effect on North Korea as a non-signatory.
Yet, many of the legal precepts from the OST arguably constitute binding international law today because the treaty principles form customary international law. This argument is bolstered by the number of spacefaring States that are party to the OST, along with the 56-year practice among many States to adhere to the principles of the OST based on legal obligation and not merely State convenience. While not all aspects of the OST carry over to binding international norms, many of them transfer, such as the prohibition against nuclear weapons in space and the general use of outer space for peaceful purposes.
This is relevant because customary international law in outer space may still bind North Korea’s actions even if it never ratifies the OST. A primary provision of the OST that is relevant to North Korea’s actions is Article III, which requires that “activities in the exploration and use of outer space” be conducted “in accordance with international law, including the Charter of the United Nations,” to generally maintain “international peace and security.” Therefore, norms of international law are transferred to the outer space context through either the OST (for State parties) or customary international law (for non-State parties to the OST).
Space Reconnaissance
While North Korea’s launch of its first-ever spy satellite is for military reconnaissance purposes, this does not render the satellite’s mission unlawful. Many countries, particularly the United States and China, have launched innumerable reconnaissance and surveillance satellites for civilian, government, and military purposes (sometimes many mixed purposes in a single satellite).
Satellites used to support military missions do not ipso facto violate the “peaceful purposes” spirit of the OST. Thus, spy satellites do not offend the language about international cooperation and peaceful uses of outer space, introduced as early as 1961 in UN Resolution 1721 A and B (XVI). This language regarding cooperation and peace forms the bedrock of the OST but does not prohibit intelligence-collecting military space objects per se.
Threat or Use of Force
This post takes no stance on whether the United States has or will interfere with the Malligyong-1. Indeed, the U.S. government has made no such indication, nor has any private U.S. entity whose actions would be imputed to the U.S. under Article VI of the OST. Therefore, North Korea’s bellicose language about interference seems to be in response to a straw man threat rather than reactive to an actual U.S. threat. North Korea’s threat to the U.S. serves as a warning shot not to interfere with the satellite, which is partly to be expected considering the extreme effort and series of setbacks that North Korea suffered in placing the satellite in orbit.
Hypothetically, however, assume that the United States or an American ally should harm or threaten to harm North Korea’s spy satellite. Article 51 of the UN Charter may permit North Korea to assert individual self-defense of its satellite if the United States were to launch an armed attack against the satellite. Additionally, under customary international law, North Korea might claim preemptive self-defense in advance of a use of force (per the Caroline formulation), if facts suggested an imminent and certain use of force.
Yet, even assuming that the United States had the intent to interfere with—not damage or destroy—the Malligyong-1, self-defense is unlikely to be implicated. And even if it is implicated, self-defense is unlikely to provide meaningful legal options to North Korea. First, non-kinetic interference, such as dazzling or jamming a satellite, would not rise to the level of an “armed attack” against the satellite based on the temporary and reversible effects on the object. Absent an armed attack, North Korea cannot cite Article 51 self-defense in response. Moreover, the extension of the inherent right of self-defense to outer space is viewed by some as controversial due to the delicate environmental balance in space and the historically territorial nature of self-defense.
Second, even if self-defense were implicated, North Korea’s measures must be necessary and proportional to the attack. North Korea must first pursue peaceful alternatives to address an attack on its satellite and any response must be proportional to the level of the threat posed by the attack or interference, lending few meaningful options. While defensive measures would be fact-dependent, almost certainly North Korea would not be authorized to initiate tit-for-tat attacks on American space assets. Self-defense is not a blank check to attack several U.S. satellites or terrestrial properties.
Threats of War
North Korea’s threat is inconsistent with several sources of international law that govern State interaction. States must seek to settle their international disputes related to space activities peacefully. Article 2(3) of the UN Charter, incorporated through Article III of the OST, requires peaceful means of dispute resolution as the first course of action. Article 33 of the UN Charter further states that parties to a dispute must “first of all, seek a solution by negotiation, inquiry, mediation,” or other peaceful means. Read together, the UN Charter and OST require resort to peaceful dispute resolution and that parties eschew issuing threats of war declarations for hypothetical satellite interference.
More to the point, if North Korea truly believes that the United States could potentially cause harmful interference with its operation of Malligyong-1, then Article IX of the OST, which is arguably customary international law, requires initial “consultation” with the offending party. The OST, much like the UN Charter, requires State parties to exhaust all peaceful means of dispute resolution before other means are contemplated. State interference with North Korea’s satellite may constitute an internationally wrongful act, but countermeasures must be necessary and proportionate, and North Korea is not exempt from the requirement for peaceful consultations.
Looking to 2024
American interference or damage to North Korea’s satellite could at best give rise to national liability for damage to North Korea’s space object under Article VI of the OST. Additionally, Article 1 of the 2001 Articles on Responsibility of States for Internationally Wrongful Acts, which is widely accepted as a restatement of customary international law, could support U.S. responsibility in the hypothetical case of damage to Malligyong-1. Further, Article II of the Liability Convention (1972) provides that a “launching State shall be absolutely liable to pay compensation for damage caused by its space object” to another State’s space object. Article III of the Liability Convention creates a liability regime based on fault for damages caused “elsewhere than on the surface of the earth” from one State’s space object to another State’s space object.
But State responsibility and declarations of war are two wildly different concepts. American or U.S. ally interference with North Korea’s satellite would not constitute a declaration of war. Most spectators would likely understand that North Korea’s bluster and threats are part and parcel of the regime’s typical approach to international relations, which is propagandist bark rather than bite.
Concluding Thoughts
Very likely, the North Korean satellite is purely symbolic and not the useful military asset that Kim Jong-un claims. The North Korean leader need not worry: North Korea can likely rely on Russia’s space intelligence efforts, especially with the new coziness of the bilateral relationship. Still, with its rudimentary technology, when—not if—the Malligyong-1 ceases to operate properly, as it almost certainly will, the United States should expect Kim Jong-un to reliably point the finger at U.S. interference rather than his nation’s technical ineptitude, further escalating North Korea’s war-drum rhetoric.
The views expressed in this post are those of the author and do not necessarily reflect the official policy or position of the United States Air Force Academy, the Air Force, the Department of Defense, or the U.S. Government. PA#: USAFA-DF-2023-782.
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Photo credit: Gerry Doyle
