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The Test: How Obama Can Pivot on North Korea

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On March 10th, US National Intelligence Director Dennis Blair testified to the Senate Armed Services Committee that "the North Koreans announced that they were going to do a space launch and I believe that that's what they intend." But at a March 26th press conference, he described the satellite as cover for a missile test, and called for "international opprobrium and hopefully worse" if North Korea goes through with the launch. Which "intelligence" offers the wiser course for US policy toward the Democratic People's Republic of Korea?

President Obama will no doubt discuss North Korea's anticipated rocket launch when he meets with Hu Jintao and Lee Myung-bak this week in London. In preparing for the meetings, the President may want to reconsider three critical questions, as he faces his first real test on the Korean peninsula: First, the factual question -- is the DPRK launching a satellite or a missile? Second, the legal question -- how to apply international laws and norms to the launch? Third, the political question -- how to best respond to a launch?

The DPRK plans to launch a rocket between April 4th and 8th. Pyongyang has submitted to the international community that it is launching a communications satellite. Most outside intelligence experts and political analysts argue that Pyongyang is in fact planning to test launch a ballistic missile. Unfortunately, viewed from afar, the launch of North Korea's Kwangmyongsong satellite aboard a multi-stage rocket is indistinguishable from that of a test launch of its ballistic missile. The only visible differentiation between missile and satellite is functional, in terms of their end point. A satellite is a communications system attached to a rocket designed to reach orbit, where it carries out space-based communications, surveillance and research. A missile is a weapons system attached to a rocket designed to reach suborbit and then re-enter the earth's atmosphere, in order to hit an aerial or terrestrial target. Satellites are one of the few objects intended to go up and never come down. Missiles are made to come back to earth with a vengeance.

So how can the world community determine if Pyongyang is launching a missile or a satellite? Basically, it can't. Just as it cannot when China, the US or Russia launch satellites. And just as it could not when Iran launched its Omid satellite in February; as it will not be able to when South Korea launches its next-generation satellite later this year. Instead, these space-faring nations self-report planned launches to governing bodies. In other words, the international community allows satellite launches on good faith (with no "verification protocol," to use a favorite phrase). So long as North Korea launches a three-stage rocket capable of reaching orbit, there is essentially no way, based on outside observation, to prove they have not launched a satellite. The only way we could know one way or the other is if the DPRK chose to show us.

What, then, are the legal implications? Were the DPRK to test launch a ballistic missile, it would clearly be in violation of 2006 UN Security Council Resolutions 1695 and 1718. However, the DPRK is acting within its sovereign rights in launching a satellite into space. Pyongyang is not prohibited by treaty, convention, or UN Security Council resolutions from launching rockets for peaceful purposes. Moreover, Pyongyang took voluntary, legally-binding steps to act in accordance with international norms governing space use -- something it did not do prior to its last rocket launches in 2006. On February 24th, 2009, the DPRK announced plans to launch the latest version of its experimental communications satellite. On March 12th, the DPRK announced it had acceded to the 1966 UN Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space and 1975 Convention on the Registration of Objects Launched into Outer Space. In keeping with the Convention, the North Korean government gave the International Maritime Organization, International Civil Aviation Organization and other world bodies advance warning and "necessary information for the safe navigation of planes and ships." Pending further evidence to the contrary, North Korea is legally protected in its planned launch.

So finally President Obama comes to the politics and diplomacy of anticipating and responding to the launch. Should the US support Japan's consideration of shooting the rocket down? Should the US go to the UN Security Council seeking a new resolution to condemn the launch and apply new sanctions? Should "rocket launches" be added to the list of issues to be addressed in the Six Party Talks? Or should the Six Party Talks be suspended as a reprimand for Pyongyang's provocative behavior? How ought President Obama weigh the range of responses, and based on what long-term goal?

For most of the last 60 years, the basic goal underlying US policy toward the DPRK regime was to hasten its demise. Throughout this time, there have been countless analysts -- many of them very knowledgeable about North Korea -- who anticipated imminent regime collapse. These voices can be heard today -- perhaps less forcefully in Washington than in Seoul, where South Korean "neo-conservatives" exert considerable foreign policy influence. The regime-collapsers may be proven right sometime in the future. But for six decades, they've been wrong. It might therefore be time to try a different overarching purpose: integration of the DPRK into the community of modern nations. What if Washington took the lead in shaking up the old pattern of hostility, distrust, misunderstanding and isolation? What if the White House unclenched its fist first, giving the ruling powers in North Korea reason to think they might survive opening gradually and peaceably to the world, and thereby giving them an incentive to try?

If one takes trust building and integration as the goal, the rocket launch could appear as a strange kind of opportunity for the US to turn yet another confrontation into a very modest breakthrough. President Obama could publicly recognize that Pyongyang dutifully submitted to international norms governing the use of space. He could acknowledge that it would be hypocritical to force upon North Korea standards to which other countries are not held. He could add to this a request that, given tensions on the peninsula and in the region, North Korea provide further verification of the peaceful purpose of the launch. He might request "consultation" prior to the launch, or "observation" by a neutral party of the satellite, based on Articles 9 and 10 of UN General Assembly Resolution 2222 attached to the Outer Space Treaty. The President could acknowledge these requests as purely volitional acts of goodwill and confidence building on the part of Pyongyang, helping him prove to skeptics (among allies and within the US) that trusting Pyongyang bears some fruit.

At best, this novel approach by Washington might turn another episode in saber rattling into a small exercise in trust building. Kim Jong-il has proven capable of bold diplomatic moves toward rapprochement when engaged directly by world leaders. North Korea may put down its sword to shake an outstretched American hand. Of course, if the satellite launch is indeed cover for a missile test, North Korea might refuse providing further positive evidence of the peaceful nature of the launch. But in letting itself lose the diplomatic standoff in the name of honoring international norms, the US would prove the power of these norms, something that might support moderates in Pyongyang down the road. Obama might lose the battle to win the war.

The conventional, "tough" alternatives don't offer much hope for progress in any deeper sense. Beijing is unlikely to go along with strict sanctions at the Security Council (which, even if passed, would probably prove limited in actual impact). In seeking sanctions, the US, Japan and South Korea simply reiterate the tired old attitude of belligerent quarantine. Even in a "best case" scenario for those who support confronting Pyongyang -- Japan shoots the rocket down over its airspace, the Security Council approves new sanctions in a strongly-worded resolution condemning the launch, and Pyongyang is faced down by a united front among the five parties... what then? The Six Party Talks effectively end. The Yongbyon reactor goes back online. The joint North-South Korea economic zone, Kaesong, grinds to a halt. Food, fertilizer and energy aid are suspended indefinitely. Will we be any closer to an end to this interminable cold war? Will the North Korea people be any closer to an escape from their predicament? Are we so sure the regime will collapse, and that it will do so quietly and peacefully?

Integration is not the path of least resistance. It is strewn with obstacles, roadblocks, reversals, details, and mistakes. But there seems only one path to peace on the Korean peninsula, and it demands increasing contact, building trust and understanding, honoring international norms, defusing conflict, and bringing North Korea into the family of nations.