Disarmament Diplomacy

Opinion & Analysis

Rules for the Road?
The International Code of Conduct Against Ballistic Missile Proliferation

By Mark Smith

Introduction

Last month, more than 80 states were reported to have agreed on a draft of the International Code of Conduct Against Ballistic Missile Proliferation (known as the ICoC), at a meeting in Paris. The ICoC had emerged from debates within the Missile Technology Control Regime (MTCR) over 1999-2001, and Disarmament Diplomacy in fact published an early version last summer.¹ There are few substantial differences between this and the version tabled at the Paris meeting, but although the draft itself is largely intact, some significant political dynamics emerged in the last year.

There are still some problems to be ironed out. The Code proved controversial even at the MTCR's Ottawa Plenary meeting last September, where the draft ICoC was approved. The question of space-launch vehicles (SLVs) is still thorny, and several members remain dubious about the wisdom of the Code concept. Outside the MTCR, the Democratic People's Republic of Korea (DPRK) and Syria failed to accept their invitation to the Paris meeting, which was disappointing but hardly a surprise. More encouragingly, India and Pakistan, two of the MTCR's bitterest critics, were there. Iran also attended, although holding to its long-standing position that the UN is the appropriate forum to address these issues. Overall, then, as one participant at Paris said, "This is still at a very early stage".²

The Context of the ICoC

The roots of the ICoC lie in the 1999 MTCR Plenary, held at Noordwijk in the Netherlands. It was here that the concept of generating demand-side norms to complement the supply-side controls of the MTCR was first discussed in depth, with the Press Release from the meeting citing the need for "new, qualitative responses to face the new proliferation threats". These qualitative responses were to take the form of confidence-building measures (CBMs) in the first instance, with the stated aim of encouraging "responsible missile behaviour".³ There was no indication of what precisely constituted such behaviour, but negotiations continued over the next year and produced the draft version agreed at the 2000 Plenary in Helsinki. The Helsinki draft is the version published in Disarmament Diplomacy.

The process responded to and reflected growing problems for the MTCR in the mid- to late-1990s.⁴ The limitations of a solely supply-side approach to non-proliferation had been exposed by the emergence of new dynamics in ballistic missile proliferation, most of which lay outside MCTR boundaries. On the demand-side, four non-regime states - the DPRK, Iran, Pakistan and India - were actively pursuing longer-range ballistic missile capabilities. This was a fundamental challenge, as the raison d'etre of the MTCR had always been to inhibit such programmes. Even more disturbing was the emergence of a supplier's ring, comprising Russia, China and the DPRK, lying partially outside the MTCR. Although Russia is a member of the regime and China an adherent, both states have been sanctioned by the US for failing to control missile exports. The DPRK remains resolutely outside the framework of export controls on missiles; indeed, its extensive missile development programme, combined with the deterioration in US-DPRK relations since the end of the Clinton era, makes it difficult to imagine North Korea joining the regime in the foreseeable future.

The MTCR's single most intractable problem may well be its inability to set norms. It began with a fragile or non-existent normative base, with norms deriving from the like-mindedness of its founders but not written into the regime at the outset. The entire global stock of missiles of intermediate range and above is in the hands of MTCR members or adherents, and this means the regime itself can only establish norms against certain states possessing missiles, not against the missiles themselves. This creates a 'haves' and 'have-nots' division that non-members often find intolerable. Correspondingly, the rationale behind the ICoC was to generate norms on missiles that all states could accept, regardless of MTCR connection.

The MTCR's discriminatory image, and the fact that ballistic and cruise missiles are possessed in large numbers by its members, meant that any demand-side regime that originated inside the MTCR would need to exercise caution with regard to the 'target states' of ballistic missile non-proliferation. In particular, a new initiative must avoid containing any commitments that MTCR members themselves would not accept: they could not be seen to advocate non-proliferation commitments that they were unwilling to subscribe to themselves. This militated strongly for a careful, step-by-step approach rather than ambitious plans for ballistic missile bans.

The Code of Conduct

It is therefore not surprising that the Helsinki draft of the ICoC was noticeably cautious in the commitments it entailed, exhibiting a minimalist approach that contrasted sharply with the considerably more ambitious measures contained in the Global Control System (GCS) proposed by Russia.⁵ The ICoC's modest commitments are probably the main reason why, after discussions with non-members of the Regime over 2000-2001, there are few substantial amendments in the Ottawa draft, which is publicly available on the SIPRI website.⁶

(i) Principles. The 'Principles' section, the normative basis of the ICoC, has survived virtually intact, with one small but interesting exception. The Helsinki draft committed subscribers to recognise that "this Code of Conduct will complement and strengthen existing national, bilateral, regional and multilateral security arrangements and disarmament and non-proliferation regimes". This sentence has now been moved to the preamble to the ICoC, which says simply that subscribers "believe" the Code of Conduct will achieve those things. In other words, recognition has been changed to belief: a semantically significant demotion suggesting that several MTCR members remain unconvinced that an ICoC would exert meaningful influence. This becomes clearer when we see that the 'Principles' section retains the clause that commits subscribers to recognise the importance of disarmament and non-proliferation regimes. Thus, it is not the regimes themselves that are questioned, but the capacity of the ICoC to appreciably strengthen them. The Ottawa draft has thus been subtly altered to focus more clearly on missile non-proliferation in its own right rather than as an adjunct of the WMD non-proliferation regimes.

One element in the Principles that has been left intact is the clause on SLVs, which is one of the stickiest topics in ballistic missile non-proliferation. The Principles entail a recognition that "all states must be able to continue to reap the benefits of the utilisation of space for peaceful purposes in ways that do not contribute to the proliferation of ballistic missiles systems". It is quite possible that this sentence is a contradiction in terms, as discussed later in this article, but the ICoC does have subsequent clauses stating that SLV programmes "should not be used to conceal ballistic missile programmes", with transparency as the preferred measure to ensure this is not happening.

(ii) Commitments. These are now referred to as 'General Measures'. Again, this is a small but noticeable change to looser language.

(iii) Incentives. These are now referred to as 'cooperation' and 'cooperative measures' in the Ottawa text. Two additions have been made to the original Helsinki draft:

• "Cooperative measures would be arranged on a case-by-case basis between those subscribing states requesting such cooperation and those subscribing states willing and able to provide it"; and
• "Cooperation between subscribing states could take various forms, the nature of which would depend on what is requested by the recipient and what could be offered by the provider".

These two additions seem to conclusively detach incentives from the ICoC. The measures cited in the Helsinki draft offered unspecified 'incentives' to states eliminating or forgoing ballistic missiles and/or SLVs. The Ottawa draft refers to 'cooperative measures' for such states, but seems to make clear that these measures will be implemented between the relevant states outside of the ICoC. In other words, the Code will be perhaps a prerequisite for cooperative measures, but not the institution to implement it.

(iv) Confidence Building Measures. There are two significant additions to this section of the Helsinki draft. The first states, "Subscribing states could, as appropriate and on a voluntary basis, develop bilateral or regional transparency measures, in addition to those above". Again, this seems to actively encourage work outside the ICoC.

The second amendment is to the clause that originally read, "Implementation of the above confidence building measures will have no bearing on the question of legitimacy of the rocket programmes concerned in respect of the obligations and norms deriving from the disarmament and non-proliferation treaties, and of the principles and commitments set out in this code". This now reads simply, "Implementation of the above confidence building measures does not serve as justification for the programmes to which these confidence building measures apply". Thus, as with the Principles clause, the ICoC has been discreetly detached somewhat from the disarmament and non-proliferation treaties to focus simply on missiles. Although the link between WMD regimes and missiles is not severed, a clear line has been drawn between those regimes and the Code. The wording of the Ottawa draft is also perhaps less pejorative: it no longer refers to 'legitimate' missiles but about whether they can be 'justified'.

Responses and Reactions

The Ottawa draft of the ICoC is the version submitted to the Paris meeting held from February 7-8, 2002. The plan now appears to be to launch the ICoC towards the close of 2002. As with so many things connected with the MTCR, information about the ICoC is rather thin on the ground, but some information about international views on it can be gleaned from open sources.

(i) The MTCR members. European MTCR members, especially those who are also in the EU, are particularly keen that the ICoC should succeed, and Britain and France played a prominent role in the drafting process before and after the Noordwijk Plenary. Much of the responsibility for the ICoC's progress this year lies with Europe. France, the MTCR contact state, hosted the February negotiation meeting. The next will be held in Spain, where final approval will be sought, while the Netherlands will be hosting the launch of the ICoC late in 2002. Doubts about the Code elsewhere in the world, both inside and outside the MTCR, mean that the European states may have to take on a large proportion of responsibility for the successful negotiation of the ICoC, and so there is a need for coordinated action. It is therefore encouraging that the EU adopted a common position on this issue in July 2001, stressing the importance of a "global and multilateral approach" to address ballistic missile non-proliferation, and promising to "actively support" the negotiation process.⁷ As EU Chair, Spain will host the next ICoC negotiation meeting this year, and in fact has already suggested strengthening the Code in the long-term through the inclusion of negative security guarantees.⁸

The ICoC appears to have general support among MTCR members, but it is probably fair to say that some are more enthusiastic than others. The US has already spoken in support of the Code and attended the Paris meeting, but reports indicated that the delegation played no part in the discussions, and simply monitored the comments of other participants.⁹ In Japan, a meeting with other Asian states produced some interesting conclusions. The welcoming statement by the State Secretary pointed out two salient facts. First, "virtually all issues that have made the headlines of the press in recent years regarding missiles have had more or less to do with Asia", and second, "nearly all countries participating in the MTCR are European". In this light, he said, "it may become necessary for us to question ourselves as to whether the Asian viewpoint is adequately reflected within the MTCR".¹⁰ This reflects long-standing Japanese concerns about the minimalist approach of the ICoC, and the possibility that, in failing to include any commitment to missile disarmament, the Code may actually legitimise the missile programmes of states such as the DPRK.

(ii) Non-Members of the MTCR. The EU's statement of its Common Position last year stated that "the Code is the most concrete and advanced initiative in this field and as such poses the best chance to achieve results in the short term". There are in fact at least two other initiatives with the same aim as the ICoC, but both seem to have run into difficulty lately. The first is the UN Study Group on Missiles, set up after an Iranian resolution submitted in 2000.¹¹ The Study Group membership is heavily weighted with MTCR members, virtually all of whom abstained on the UN debate on the Resolution that agreed to set up the Group.¹² Their commitment to the Study, therefore, might be regarded as lukewarm in some cases. The EU had criticised the Study Group proposal on the grounds that, unlike the ICoC, it failed to focus directly on ballistic missiles, which the EU described as "the overriding problem in the field of missiles".¹³ Contrastingly, most members of the Non-Aligned Movement (NAM) supported the Study Group proposal. South Africa is the only member of both the NAM and the MTCR, although Brazil often attends NAM meetings as Observer. The second initiative is the Russian GCS proposal, which seems to have retreated from public view recently.

Reactions elsewhere have been, on the whole, politely positive rather than enthusiastic. As mentioned, India and Pakistan both attended the Paris meeting, unquestionably a positive development in light of their long-standing criticism of the MTCR. They also have a demonstrable commitment to the type of CBM-based measures utilised by the ICoC, as evinced by the 1999 Lahore Declaration. It may therefore be that they are considering implementing missile CBMs via the ICoC, but both are also certain to reject any further measures that smack of discrimination. Pakistan's response to the UN Study Group proposal stated firmly that "the missile capabilities currently existing or emerging in developing countries are of no significance compared to the massive delivery capabilities possessed by the nuclear-weapon states under the Treaty on the Non-Proliferation of Nuclear Weapons and their allies", and went on to argue that the priority was to establish "an equitable framework" to deal with the missile issue.¹⁴

The Study Group itself was proposed by Iran, which almost certainly made it an object of suspicion in the eyes of some MTCR member states. Iran has always argued that the UN was the appropriate forum for the establishment of non-proliferation regimes on missiles, which may in fact be a realistic possibility for the ICoC. The EU's Common Position stated, "The Union considers that after its adoption the Code could be of interest to the United Nations". However, the remit of the Group to study "the issue of missiles in all its aspects" reflects the concern of non-MTCR members such as Pakistan that the ballistic and cruise missile capabilities of MTCR members need to be part of any regime on missiles. In short, their vision is for something similar to the NPT's Article VI: a common agreement to disarm. That any agreement should eventually take in all missiles is not surprising. As Alaa Issa has pointed out, "if the experience of the past decade is a guideline, one will find that the use of missiles has been overwhelmingly directed from North to South, by NATO members against Iraq, Afghanistan and Sudan", where attacks were carried out with cruise missiles.¹⁵

Problems and Prospects

Signs are difficult to come by at the moment, but the situation as of February 2002 can be described, without straying into unwarranted optimism, as generally hopeful. Three key problems stand out.

(i) Legitimisation and Delegitimisation. This is one of the thorniest issues for the ICoC. For some of the Code's critics within the MTCR, the most effective way to both underpin and pursue any non-proliferation regime, including one on ballistic missiles, is to delegitimise possession: to make the missiles unacceptable and thus make ownership a stigma and breach of international norms. From this viewpoint, the ICoC risks being counterproductive because it lacks any clear normative foundation. Although it contains a recognition that ballistic missile proliferation presents security challenges, and a principle stressing the importance of curbing proliferation, there is no reference to reversal of proliferation, or of missile disarmament of any kind. This, it is feared, may unavoidably lend a patina of respectability to programmes such as the Shahab and Taepo Dong missile systems if Iran and the DPRK should sign the Code. This fear led some to insist that the ICoC retain its clause citing specifically that membership does not justify programmes, although the stronger language referring to 'legitimacy' was changed.

Few of the drafters of the ICoC view it as a satisfactory solution in itself: it is widely seen as a necessary first step in norm construction, but certainly not the final or only one. It is therefore part of a process, which inevitably raises the question - a process leading to what? Many states fear that the lack of a clear goal, in the sense of a picture of what a missile non-proliferation regime might look like, may mean the ICoC becoming a de facto end in itself.

This view is especially prevalent, understandably, among states in 'missile dangerous' areas. It is a consequence of the fact that missiles are delivery systems rather than weapons, and norms on their possession barely exist at the multilateral level. Such norms need therefore to be developed from scratch, and that means addressing the issue of what kind of norms are being so constructed. The fear of legitimisation is therefore based on a very real problem, and should not be discounted. However, the current lack of norms raises an equally daunting problem if the ICoC were to make an explicit attempt to delegitimise missiles themselves, a problem that is highlighted by Pakistan's response to the Iranian proposal for a UN Study Group, cited above. The most sophisticated and longest-range missiles in the world are in the hands of MTCR member states, and Pakistan pointed out that "those with the most formidable missile capabilities are not ready to part with them".¹⁶ If this is the case, how can ballistic missiles be delegitimised equitably? If some states' missiles are to be excluded, then this unavoidably means that it is not missiles themselves that are the problem, but particular states. It is not clear what the long-term solution to this may be. The ICoC has trodden a very careful line, and opted for a minimalist approach.

(ii) The SLV issue. This is the second intractable problem in ballistic missile non-proliferation. It is a fact that ballistic missile technology does have peaceful uses, and the pursuit of such uses should not automatically mean a ballistic missile programme. It will, however, automatically mean a ballistic missile potential, and the ICoC does recognise this issue. Of the eight principles involved, three are specifically concerned with the SLV issue. Subscribing countries are to recognise that:

• "States must be able to continue to reap the benefits of the utilisation of space for peaceful purposes in ways that do not contribute to the proliferation of Ballistic Missile systems capable of delivering weapons of mass destruction";
• "Space Launch Vehicle programmes should not be used to conceal Ballistic Missile programmes";
• "The necessity of appropriate transparency measures on Ballistic Missile programmes and Space Launch Vehicle programmes in order to increase confidence and to promote non-proliferation of Ballistic Missiles and Ballistic Missile technology".

There is a clear means-end relationship here: the ICoC prescribes transparency in order to make sure space is utilised peacefully and that SLVs do not conceal ballistic missile programmes. The concept of utilising space in ways that do not contribute to ballistic missile proliferation sounds like an oxymoron at first glance, but it has been suggested that one way to achieve this goal would be via space launch consortia. Under such a scheme, MTCR members could offer space launch facilities at discounted rates for states that had agreed to forgo ballistic missiles and SLVs. There would, in short, be some identifiable trade-off or incentive for subscribing. The ICoC is tantalizingly vague on the issue of incentives and cooperation, preferring to defer to bilateral contacts between MTCR states and possible clients outside the regime, but Iran, India and Pakistan are all reported to be disappointed that nothing more concrete is involved.¹⁷ This is unfortunate, since it reinforces the notion that MTCR members are using non-proliferation as a screen to protect their economic and military advantage over the developing world.

(iii) Cruise Missiles. The UN Study Group's reference to "the issue of missiles in all its aspects" highlights and recognises something the ICoC does not: that ballistic missile programmes are not always driven by other ballistic missile programmes. Pakistan's strongly-worded response to the Study Group proposal refers to the "delivery capabilities" of states as well as to ballistic missiles. Thus, one key, though by no means exclusive, motivating force behind ballistic missile programmes outside the MTCR is the long-range cruise missile and force projection capabilities of MTCR members. The familiar pattern repeats itself: the suspicion in the developing world - fuelled, for instance, by the EU's criticism of the UN Study Group for failing to focus on long-range ballistic missiles as the key security challenge - is that the US and its allies are deploying non-proliferation as a means of maintaining their own military advantage.

Conclusion

The three issues discussed above are likely to be the most immediate difficulties confronting the ICoC. Other difficulties exist - the US pursuit of missile defence and the shape of international coalition politics post-Afghanistan, to name but two - but the questions surrounding legitimisation, SLVs and other missile issues represent the factors intrinsic to the ICoC liable to shape and ultimately decide its fate.

As things stand, missile non-proliferation remains a controversial subject, particularly between missile-possessing states inside and outside the MTCR. The challenge is to construct international norms in an area where few, if any, exist. The step-by-step approach of the ICoC is therefore the wisest approach, provided it is regarded as a process rather than an event, and certainly not as a destination. The trick will be to balance ambitions for genuine non-proliferation with the need to construct consensus on the way forward. To be effective, the Code will need to include only such measures as MTCR members are prepared to take on board themselves, without weakening its substance to the point that no further steps can be constructed on its foundation. In short, it will need to establish the possibility for progress.

Notes and References

1. 'MTCR Draft International Code of Conduct', Disarmament Diplomacy No. 57 (May 2001), pp 2-4.

2. 'Missile Control Talks Open in Paris', BBC News Online, February 7, 2002, http://news.bbc.co.uk/hi/english/world/europe/newsid_1807000/1807131.stm.

3. Plenary Meeting of the Missile Technology Control Regime, 1999.

4. Mark Smith, 'The MTCR and the Future of Ballistic Missile Non-Proliferation', Disarmament Diplomacy No 54 (February 2001), pp. 19-25.

5. Alexander Pikayev, 'The Global Control System', in Missile Proliferation and Defenses: Problems and Prospects, Monterey Occasional Paper No. 7, Center for Nonproliferation Studies, Monterey Institute of International Studies, June 2001, pp. 21-27.

6. See SIPRI, http://projects.sipri.se/expcon/mtcr01.htm.

7. 'Council Common Position 2001/567/CFSP of July 23, 2001 on the fight against ballistic missile proliferation', Declaration of the Gothenburg European Council on prevention of proliferation of ballistic missiles: Bull. 6-2001, point I.45.

8. Vicentre Garrido Rebolledo, 'The 2002 Spanish EU Presidency, the CFSP, and Consequences for Arms Control', http://www.hsfk.de/abm/forum/rebospan.htm.

9. 'International Response: Countries Agree to Missile Code of Conduct', Global Security Newswire, February 11, 2002.

10. Welcoming Statement by Japan's State Secretary, 'Discussion on Measures to Cope With Ballistic Missile Proliferation and Possible International Code of Conduct', March 2, 2001.

11. The resolution, 55/33A, was adopted by the UN General Assembly on November 20, 2000. For an analysis of the debate and vote in the UNGA, see Jenni Rissanen and Rebecca Johnson, 'First Committee Report', Disarmament Diplomacy 52, November 2000.

12. The UN Resolution was passed by 97 votes to 0, with 65 abstentions, after being endorsed by the First Committee (L.1/Rev.1) by 90 votes to 0 with 60 abstentions. Of the MTCR members, only Russia and South Africa supported the motion.

13. 'Report of the Secretary-General: Missiles', July 5, 2001, UNGA A/56/136.

14. 'Addendum: Report of the Secretary-General: Missiles', September 6, 2001, UNGA A/56/136/Add.2.

15. Alaa Issa, 'The Drivers Behind Missile Proliferation', in Missile Proliferation and Defenses: Problems and Prospects, Monterey Occasional Paper No. 7, Center for Nonproliferation Studies, Monterey Institute of International Studies, June 2001, p.3.

16. 'Addendum: Report of the Secretary-General: Missiles', September 6, 2001, UNGA A/56/136/Add.2.

17. 'New Regime to Control Missile Proliferation', The Korea Times, October 5, 2001.

Dr. Mark Smith is a Research Fellow at the Mountbatten Centre for International Studies, Department of Politics, University of Southampton, UK.

© 2002 The Acronym Institute.