The North Korean Missile Over Japan – Some Aeronautical Considerations

Should North Korea have given prior notification to Japan and obtained its authorization or was such authorization irrelevant as it was deemed to be in outer space when it went over Japan?

by Dr. Ruwantissa Abeyratne-Aug 30, 2017

The missile was an unprecedented, grave threat to Japan…Prime Minister Shinzo Abe

( August 30, 2017, Montreal, Sri Lanka Guardian) On Tuesday 30 August North Korea fired a ballistic missile that “passed over” Japan, as Prime Minister Shinzo Abe is reported to have said to the media. According to military reports emanating from South Korea, the missile had been launched around 5:57 a.m. local time on Tuesday and flown for about 2,700 kilometers (1,678 miles), reaching a maximum altitude of 550 kilometers (342 miles). It had splashed down at 6:29 a.m. local time.

There are both aeronautical and space law considerations embodied in this event and, more questions than answers. Firstly, The Prime Minister of Japan had said that the missile had passed over Japan. At a maximum altitude of 550 kilometers, did the missile actually “pass over” Japanese territory? What was the actual altitude of the missile when it went over Japan? Was it in outer space, and if so, is it not a fact that according to the Outer Space Treaty of 1967, no State can claim territorial sovereignty over any portion of outer space or any object or mass in outer space?

Secondly, what was the missile while it was in the atmosphere? Was it an aircraft? An aircraft has been defined as any machine that can derive its support in the atmosphere from the forces of air other than the forces of air on the Earth’s surface. If it were classified as an aircraft, was it a State aircraft (meaning any aircraft used inter alia in military services, as per the Chicago Convention of 1944)? If such were to be the case what was the trajectory of the missile? Did it endanger the safety of other aircraft by crossing their paths? If that were to be the case, was North Korea (which is a signatory to the Chicago Convention, and a State party which ratified the treaty, guilty of breaching Article 3 (c) of the Convention which states that no State aircraft of a contracting State has the right to fly over the territory of another state or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof.

Should North Korea have given prior notification to Japan and obtained its authorization or was such authorization irrelevant as it was deemed to be in outer space when it went over Japan?

The Japanese authorities had severely cautioned the Japanese to remain indoors in case parts of the ballistic missile should fall on Japanese territory. If such were to happen it would no longer be an issue of space law and may have come within the purview of the International Civil Aviation Organization, as there could be implications for civil aircraft flying over Japan. Could, or should Japan consider having this issue placed before the International Civil Aviation Organization’s Council under Article 84 of the Chicago Convention on dispute resolution?

If it boils down to a territorial issue, as claimed by Japan, it must be noted that, with regard to the complaint of Japan, the debate must start with Article 1 of the Chicago Convention which provides that Contracting States recognize that every State (irrespective of whether it has ratified the Convention or not) has complete and exclusive sovereignty over the airspace above its territory, “territory” being defined by Article 2 (for the purpose of the Convention) as land areas and territorial waters adjacent to the land areas under the sovereignty, suzerainty, protection or mandate of that State. Any State which performs an incursion into such sovereign territory by whatever means would be breaching this fundamental principle of air law.

If the North Korean missile in any way endangered civil aircraft in flight, Article 3 bis of the Chicago Convention providesinter alia that the contracting States to the Convention recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. The question would be whether radio frequencies or any device or object directed at an aircraft that causes electromagnetic interference with the latter’s navigational instruments or devices are a “weapon”. It is arguable that the answer must be in the affirmative. However, in the case of North Korea, it is noteworthy that although it ratified the Chicago Convention in 1977, it has yet to ratify Article 3 bis, which fact absolves it from being obligated to follow the principle enunciated therein.

In early August of this year, The United Nations Security Council passed a resolution imposing economic sanctions on North Korea against its ballistic missile testing, prompting the United States Ambassador to the UN to call the resolution “the strongest sanctions ever imposed in response to a ballistic missile test.” Yet, after a few weeks, North Korea has demonstrated with flagrant disregard of the sanctions, the very act which, this time potentially endangered the safety of a country. The world seems to have run out of options against North Korea and therefore, what purpose would be served in Japan’s seeking solace through the United Nations?

This is a complex issue for both scientists and international lawyers who should put their heads together and resolve the issues by a process of deconstruction. Was the missile over Japanese territory at 550 kilometers in altitude or any other altitude? we still do not have a global understanding or agreement on at what altitude air space ends and at what point outer space begins? What are the laws that would govern travel from airspace to outer space? Air law and space law are closely inter-related in some areas and both these disciplines have to be viewed in the 21st Century within the changing face of international law and politics. Both air law and space law are disciplines that are grounded on principles of public international law, which is increasingly becoming different from what it was a few decades ago. We no longer think of this area of the law as a set of fixed rules, even if such rules have always been a snapshot of the law as it stands at a given period of time.

If the world has run out of options to keep North Korea at bay, the only way forward is to strengthen each country’s missile defense systems. The best solution would of course be dialogue but then it has already been tried with no tangible results. One of course has to be aware that this has not been easy. When CBS’ 60 Minutes interviewed senior military personnel of North Korea in January 2006, General Ri, a top ranking military officer is reported to have said “Tell the American people that you met the general. If the United States invades our country and starts a war, the People’s Army will fight to the death and defend ourselves, taking appropriate revenge”.

This situation should never come about.

The author is former Senior Legal Officer at the International Civil Aviation Organization. Having published over 30 books and 400 journal articles on aerospace law during his aviation career which spans 35 years, he now runs his own consultancy firm in Montreal. His books Regulation of Commercial Space Transport : The Astrocizing of ICAO published by Springer in 2014 and Space Security Law released by the same publisher in 2011 discuss in depth some questions raised in this article.