3 December 2002

 Low Key Launch of Hague Code of Conduct

Against Ballistic Missile Proliferation

By Ian Davis, Director of BASIC

Introduction
On November 25-26, an international conference in the Hague marked the inauguration of a new global instrument against the proliferation of ballistic missiles: the Hague Code of Conduct Against Ballistic Missile Proliferation (HCC). The full text of the Code is reproduced in Annex 1. The number of Subscribing States to the Code currently stands at 93 – as listed in Annex 2.

During earlier negotiations the draft Code was known as the International Code of Conduct against Ballistic Missile Proliferation (ICOC). It was changed to ‘The Hague Code of Conduct’ to underline the important role of the city of The Hague as the world’s legal capital.

Very few decisions were taken at the conference, which was part ceremonial launch (day one) and part closed discussion by the Subscribing States on how to implement the Code (day two).

The Netherlands was appointed as the first Chair of the Code for a period of one year, and one of the important tasks for the Chair will be to expand the number of Subscribing States. Austria was appointed administrative Central Contact for the Code, and will collect and disseminate the confidence building measures submissions and receive and announce the subscription of additional States to the Code. Subscribing States also agreed to have regular meetings, and a technical meeting is planned for Spring 2003.

Ballistic Missile Proliferation
Germany first developed ballistic missiles in their military form during World War II. The V-2, which was powered only during the first part of its flight, was the world's first operational ballistic missile with a range of just over 300km. Over the last 60 years, ballistic missiles have become a key strategic weapon of modern deterrence and warfare, and can be used to carry conventional, chemical or nuclear warheads. Ballistic missiles can also be used as launchers for civilian space projects.

Today, intermediate-range ballistic missiles (IRBM) can reach targets up to 2,400km away, while intercontinental ballistic missiles (ICBM) have a range of many thousands of kilometres. The key US offensive ballistic missiles are the Minutemen ICBMs, which are launched from silos, and the submarine-launched Tridents, which replaced the earlier Polaris and Poseidon. All currently deployed ballistic missiles can be equipped with Multiple Independently Targetable Re-entry Vehicles (MIRVs), which permit one booster to carry several warheads, each guided to a separate target. The former Soviet Union completed the first operative ICBMs in 1958, and the United States, reacting to a supposed ‘missile gap’, gained overwhelming missile superiority by 1962. In terms of accuracy and payload, this supremacy was never relinquished.

In an effort to stop the proliferation of ballistic missiles, the United Kingdom, France, United States, Italy, Canada, Japan and Germany (the G7 states) established the Missile Technology Control Regime (MTCR) in 1987. The MTCR is a voluntary co-operative undertaking between states to limit the proliferation of nuclear, and (since January 1993) chemical and biological-capable missiles with a range of over 300km. It works through the national enforcement of agreed guidelines to control exports of equipment and technology that could be used to build such missiles. Since 1987, the membership of the MTCR has increased to 32 states.[1]

There are several major weaknesses in the MTCR. First, it is not a treaty and is not legally binding. Second, not all the suppliers of missile components and technology are in the regime (e.g. China, North Korea, Iran, India and Pakistan are suppliers who operate outside of the MTCR, although China has pledged to work within MTCR guidelines). Third, the regime contains no provisions for reducing existing missile stockpiles, and fourth, it denies dual-use technology to developing countries for peaceful purposes.

In the early 1980s only the Soviet Union and the seven original member states of the MTCR had the capability to export whole ballistic missile systems. Today, however, it is estimated that 31 nations have an operational short-range ballistic missile capability (with a range up to 600km), with North Korea, Iran, Iraq, Syria and Libya identified by the United States as particular ‘states of concern’.[2] However, none of these so-called states of concern currently possess missiles able to reach the United States, although part of the territory of NATO (i.e. Turkey) is within range of short-range missiles from Syria, Iran and Iraq.

The threat to regional stability and ultimately global security from the proliferation of ballistic missiles is made worse, as has been evident since 11 September 2001, by the danger that these weapons could fall into the hands of terrorists. Concerns over the proliferation of ballistic missiles capable of delivering WMD among states of concern and non-state actors have also triggered renewed interest in the development of missile defences, particularly in the United States.[3] However, as the Dutch Advisory Council on International Affairs recently concluded, “the United States is the only NATO ally that has a strong view on the threat from ballistic missiles”.[4]

Key Elements of the Code
In its original structure, the MTCR was not meant to halt missile proliferation, but to slow it down until a more comprehensive regime was put in place. The Hague Code of Conduct is a promising first step towards filling this gap: in developing a primary multilateral instrument for preventing ballistic missile proliferation. Like the MTCR, it is a politically binding document rather than an article of international law, but is intended to address some of the MTCR’s shortcomings, not least in its intention of universality.

The Code is the product of seven years debate and dialogue and builds upon earlier in-depth discussions among some one hundred nations at meetings in Madrid in June and Paris in February this year.[5] The European Union strongly supported the initiative from the start and took upon itself the task of bringing this process to a successful conclusion before the end of 2002. In particular, the Danish EU Presidency conducted intensive consultations in the lead up to the Hague conference. Of all the initiatives taken so far to prevent the continuing proliferation of ballistic missiles, it is the most concrete and advanced.[6]

The Code calls for greater restraint in developing, testing, using, and spreading ballistic missiles. It does not prohibit states from owning ballistic missiles nor from benefiting from the peaceful use of outer space. But to increase transparency and reduce mistrust among Subscribing States, it provides a number of general rules and introduces confidence-building measures, such as the obligation to announce missile launches in advance. Each country that has endorsed the Code must specify its national policy regarding ballistic missiles and space launches, including civilian ones.

The Subscribing States recognize that other measures will need to follow, at the United Nations and elsewhere.

Opinions of the Subscribing States: US Differences to the Fore
Most (approximately 85) of the 93 Subscribing States attended the ceremonial launch in the Hague, and around half of them opted to make a brief statement on the first day of the conference. As would be expected, all the speeches were supportive of the Code and several sought to draw attention to specific national or regional security concerns or objectives. For example, several of the statements from African delegates drew attention to the need for militarily advanced nations to redirect military R&D spending to the promotion of equity and justice throughout the world; the UK delegation stressed that inspections represent the “last chance” to peacefully resolve the conflict in Iraq; Bulgaria, a country that has been accused of lax export control practices in the past, took the opportunity to showcase its national export control reforms and make the case for MTCR membership; and Argentina outlined a number of criteria for assessing the peaceful use of missile launches and satellites, while simultaneously announcing its own nascent space programme plans. 

The most substantive statement, however, came from John Bolton, US Under Secretary of State for Arms Control and International Security – the full text of which is reproduced as Annex 3. While Bolton also affirmed US support for the Code – calling it a “concrete demonstration" of the international community’s determination to find more ways to address WMD proliferation, and stating that the United States has "high confidence in its future potential" – he also highlighted a number of qualifying factors and reservations to this support.  

First, the Code (and other multilateral efforts, such as the MTCR) is only one element of the US strategy against missile proliferation. Another element of that strategy is the development of a missile defence system. The US Administration sees all these efforts as “complementary” and “mutually reinforcing”.  

Second, with regard to implementation work, Bolton noted that the US plans "to make pre-launch notifications and annual declarations pursuant to the ICOC based upon current US proposals in its negotiations with the Russian Federation on a Pre-Launch Notification System, including the question of which launches are to be notified."  These proposals are part of the 1998 US-Russian Strategic Stability Cooperation Initiative. At the same time, he pointed out that the United States "reserves the right in circumstances of war to launch ballistic missile and space-launch vehicles without prior notification."

Over the longer term, Bolton wants the bilateral US-Russian system to be “multilateralized” and suggests that it “might provide the mechanism by which all ICOC subscribing states exchange pre-launch notifications”.

Third, Bolton also used the conference as an opportunity to the highlight non-compliance by certain states with other WMD non-proliferation regimes. (Only the British and French delegations made similarly explicit statements, with the former stressing the need to “confront persistent cheaters”, citing Iraq and North Korea as examples). He pointed out once again that Iraq, North Korea, Iran, Libya and Cuba are violating their commitments to the 1972 Biological Weapons Convention. This led Libya, the only one of the five named countries represented in the Hague meeting, to exercise a right of reply, in which the charges were firmly denied and counter-claims were made about US non-compliance. In his earlier statement, the head of the Libyan delegation, Minister of Foreign Affairs Abdurrahman Shalgham, had called for the Code to include provisions to “ban and destroy all missiles capable of delivering WMD”, and that the provisions should apply to “all states, irrespective of capability”. He also suggested a name change to “International Code of Conduct to Prohibit the Production, Use, Stockpiling and Transfer of Ballistic Missiles”. This was in keeping with Libya’s, and much of the non-aligned movement’s position, in public at least, of calling for the destruction of all WMD.

Fourth, while speaker after speaker stressed the need to encourage non-subscribing states to join the Code, John Bolton struck up a less conciliatory tone. Having drawn attention to the “grave threat" to the integrity of the 1968 Nuclear Non-Proliferation Treaty from North Korea's admission to enriching uranium for nuclear weapons, he went on to argue:

Surely, none of us wants this disdain and disregard to happen to the new ICOC.  That is why we are not concerned about the states that have chosen not to subscribe to the code. Far better to know who is actually prepared to live under its terms, and who is not.  Far better to know who is truly serious about stopping the proliferation of ballistic missile technology and the risk that such technology could be used to carry weapons of mass destruction against innocent civilian populations.

Although several other Subscribing States may share some of these US concerns, as stated earlier, only the UK and France were prepared to voice them during the opening ceremony.  The willingness on the part of the US delegation to do so reflects the growing confidence of a US Administration seeking to set a new agenda in international affairs. It is an agenda that places less emphasis on non-proliferation and more on unilateral measures such as sanctions, pre-emption and the deployment of technically advanced weapon systems, including missile defences, as advanced in the Nuclear Posture Review and Quadrennial Defence Review. However, it must be stressed that the non-proliferation architecture has been sufficiently robust to limit the ‘problems’ to just five ‘states of concern’.

Future Challenges
There are two key future challenges: increasing the number of Subscribing States and deepening the scope and nature of the Code.

Towards universality: All of the UN member states except Iraq have been invited to subscribe to the Code, which will be submitted to the United Nations for information purposes. The ultimate goal is to reach a multilateral agreement that is open to all countries, including those that are not party to the MTCR or the Nuclear Non Proliferation Treaty. Involving ‘states of concern’, however, might come at a price. The United States in particular has been unwilling to compromise where countries it has labelled as part of the ‘axis of evil’ are concerned. Syria and North Korea chose not to attend either the Paris or Madrid meetings, while Iran – an active participant in the Paris talks – pulled out of the Madrid meeting at the last minute. Iraq was excluded from all the prior discussions. Libya, as noted above, although a Subscribing State, hardly sees eye-to-eye with the United States on some of the fundamental issues.

In addition to the ‘states of concern’, many other ballistic missile-capable states including Brazil, China, India, Israel and Pakistan remain outside the Code for the time being (although all were party to the earlier discussions).[7]  At this stage, the Code appears to offer too little to such states with ballistic missile programmes to make subscription worthwhile. With no tangible incentives on offer, either in terms of technology assistance for peaceful space development programmes or in the form of negative security assurances (through an agreement not to use ballistic missiles against states that abstain from ballistic missile programmes), it is difficult to see many of these states joining the Code any time soon. Moreover, adding such provisions to the Code seems unlikely, since technology transfer in exchange for giving up ballistic missile programmes is not an approach viewed favourably by Washington.

Deepening the Code: The Code does very little to address the fundamental problem of a lack of global standards and norms for regulating the use of ballistic missiles – for deciding on what is an acceptable or unacceptable use of ballistic missile technology. Thus, the Code will need to build on the transparency and confidence building mechanisms and establish further norms and standards, including the prohibition of their use.  A ban on medium and short-range missiles, for example, might be developed in the first instance in specific regional contexts. Current discussions among the Andean Pact nations for a missile-free zone fit such a model, but it will also be important to reach similar agreements in regions of tension, particularly the Middle East and South Asia.

Conclusions

The Code offers an opportunity to combat the proliferation of ballistic missiles through a cooperative, multilateral agreement. There are clearly shortcomings in the current system of arms control and non-proliferation, and especially regarding delivery systems such as ballistic missiles. These need to be dealt with in order to ensure the credibility of the system.

In creating a Code that is acceptable to MTCR members, and especially the United States, the resulting document is rather thin on substance. However, its importance as a multilateral initiative should not be overlooked, and the opportunity for developing regional or bilateral measures in the spirit of the Code will add to its significance.