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Disarmament Diplomacy

Issue No. 68, December 2002 - January 2003

Opinion & Analysis

Stuck on the Launch Pad? The Ballistic Missile Code of Conduct Opens for Business

By Mark Smith


After three years of drafting and negotiation, the ballistic missile Code of Conduct was launched in The Hague on November 25-26, 2002. This was a fitting place for the Code's inception, because the Netherlands has played a central role in the drafting process, and because the roots of the text are to be found in the discussions that took place at the 1999 Plenary of the Missile Technology Control Regime (MTCR) at Noordwijk in the Netherlands. Consequently, the title of the initiative has been changed from the International Code of Conduct (ICoC) to the Hague Code of Conduct, and the Netherlands will hold the Chair for its first year of existence.

This article considers the potential impact of the Hague Code of Conduct, in both the near- and long-term, on efforts to address threats to regional and global security posed by the proliferation of ballistic missiles and related technology.1 While the omens from the launch are hardly auspicious, the initiative may yet prove able to make a valuable contribution to strengthening this crucial but sadly neglected aspect of the international non-proliferation regime.

The Run-Up to the Launch

Following the launching conference, the list of founder members stands at 93 and counting, but the number of signatories is considerably more encouraging than which states signed the document. To put it another way, the list of non-signatories is at least as significant as the list of subscribers. That said, the Code has achieved what other initiatives have not, and begun the process of constructing global non-proliferation norms on missiles in concrete, if thin, form. Its drafters and supporters have always argued that to criticize the Code for lack of substance is rather beside the point. It is a step in a process, rather than an event.

Negotiations over the final shape of the Code continued for most of 2002, and it was not until late in the day that the disappointing signatory list became apparent. The drafting meeting held in Paris last February was followed by another in Madrid in July. Although an increased number of participants came along - 96 as against 73 in Paris - the meeting had a very low public profile, and subsequent negotiations continued on a bilateral basis between the European Union (EU) and individual states. China, India, Israel and Egypt were all consulted in this way, although none of them signed at The Hague.

Although an EU official optimistically described the Code as "in good health" last August, the thin flow of information in the public realm did not look promising. After Madrid, it was no longer a question of whether the text of the document would be changed, especially as the US had stated flatly that it would reject any substantial alterations. Rather, it was about which states could be persuaded to sign up to the text as it stood. Indications of the way things were going surfaced in the General Debate of the UN First Committee in New York from September 30 to October 10. The submissions of several states mentioned both the Code and the report of the UN Panel of Governmental Experts on the Issue of Missiles in All its Aspects.2

Brazil, India, Pakistan and South Africa all highlighted what Brazil referred to as "the legitimate aspirations of all states to reap the benefits of peaceful uses of space technologies".3 This, in fact, has been a difficult point for the Code, as it is likely to be for any non-proliferation scheme for ballistic missiles. Of the four states mentioned, only South Africa decided to sign the Code, and it seems reasonable, judging by the tone of the South African submission to the First Committee, to think that this was despite some serious misgivings: "early drafts [of the Code] have not managed to adequately address the utilization of the benefits of space for peaceful purposes".4 India subsequently announced it would not participate in the Code and cited this issue as central to the decision: "The final ICoC document refers to ballistic missile development and space launch vehicles without the proper distinction. We find it difficult to accept an amalgamation of this nature and the implied questioning of the right to peaceful uses of technology".5 This seems a little spurious, since the text of the Code is, in fact, at pains to draw distinctions between space launch vehicles (SLVs) and ballistic missiles. SLVs are mentioned specifically in the context of their technical similarity to missiles, and the right to peaceful uses of space is clearly endorsed.

It seems likely that the issue was not making the distinction so much as following through on its implications. That is, recognition of the peaceful uses of technology was not the same thing as opening access to it in return for commitment to the Code. The MTCR's tight controls on access to missile/SLV technology have rankled in the developing world for years. India's address to the UN First Committee expanded on this, and spoke for many developing states: "There has been in recent years an excessive reliance on export controls, in the name of non-proliferation, by select groups of countries. While such measures have not been effective, denial of so called dual-use technology and equipment have done immense damage to the peaceful developmental efforts of developing countries in a number of spheres of economic activity. There is a need for an effective and transparent system of export controls that would conform to the objectives of non-proliferation without affecting peaceful applications of these technologies. There is no place for discriminatory mechanisms, some of which run contrary to existing treaty provisions, that deprive developing countries of the benefits of path-breaking scientific and technological developments".6

This viewpoint strongly suggested that the Code, which recognized the different uses of missile/SLV technology without legitimising or promising greater access to it for signatories, would struggle to find acceptance in states that were trying to develop their SLV capabilities, such as India and Brazil. The counter-argument to this perspective was put by Japan to the UN Study Group: "SLV technologies are inherently similar to those of ballistic missiles. Therefore, countries claiming to be engaging in SLV activities should be in full compliance with the existing treaties relating to weapons of mass destruction".7 This does not apply to India, which has declined to join the NPT. In fact, shortly before talks on the ICoC began between the EU and India, an EU official reported, "One country is concerned that by agreeing to the Code it would be forced to abide by other international agreements such as the NPT".8 If this unnamed state was not India, it was almost certainly Pakistan, which has voiced similar concerns.

Criticisms of the process by which the Code was drafted also began to surface. Any non-proliferation initiative with the ICoC's provenance in the MTCR was likely to be regarded with suspicion, and so it proved. Egypt's submission to the First Committee stated: "Egypt engaged in good faith in the efforts to consider the ICoC during two meetings held in Paris and Madrid in 2002, but somehow these efforts always fell short of the necessary requirements of a multilateral exercise".9 Pakistan concurred, complaining in a statement to the Global Security Newswire that the short series of meetings had not taken the concerns of Pakistan into account.10 This was always a risk in the Code's drafting process: the status of the meetings was not always, or even often, clear.

The Code's heavy reliance on confidence-building measures (CBMs) as its most immediate requirement of signatories was also criticized. Israel (which did not sign the Code) and Japan (which did) highlighted a similar position here, in their submissions regarding the UN Resolution on Missiles. Israel's response acknowledged that CBMs "could be useful in the missile context" but stressed that this must begin at the regional level and, by implication, not at the global one.11 This was a problem because the Code's CBMs do not contain any provision for flexibility to allow them to be tailored consistent with national or regional security dynamics. China has also argued that the Code's CBMs ought to be voluntary: a smorgasbord rather than a set menu, so to speak.12 The Japanese submission on the UN's Missiles resolution made a similar point: "CBMs may work under certain conditions, but it should be noted that in some cases the application of CBMs of some kind could have adverse implications for regional security".13

It was these sorts of concerns that led Japan, among others, to insist on the clause in the Code's text stating that signature did not confer "justification" upon a state's missile programmes. From a longer-term perspective, Japan has often argued that CBMs are a concept rooted in Cold War Europe, and thus not necessarily suitable for post-Cold War non-European security. It is this perspective that has led Japan to advocate 'Mutual Reassurance Measures' in the past.

Despite the fact that these critiques are mostly long-standing ones, it was not until very late in the day that states began to publicly state their position with regard to subscribing. In the two weeks before the launch, China, India and Pakistan all publicly declared they would not sign. Other indications were similarly unpromising. The DPRK, which had not accepted invitations to the Paris or Madrid meetings, agreed bilaterally with Japan that it would extend its missile test moratorium indefinitely. This was a considerable step further than anything the Code could achieve, but within weeks of the announcement the DPRK was threatening, in typical Pyongyang fashion, to ditch the moratorium if Japan would not comply with its wishes over economic aid.

In the UN, the Study Group on missiles submitted its first report in late July.14 The group has encountered the difficulties plaguing any attempt to come to grips with the politics of missile non-proliferation, and its conclusions reflected the intractability of those problems. The South African contribution to the First Committee debate was brutally honest: "The report of the UN Panel of Governmental Experts on missiles in all aspects is a sad reflection on the current state of disarmament affairs. Panel members had vigorous discussions, but could not agree on a single recommendation for a course of action, and couldn't even agree on what the nature of the problem was".15 Given the Study Group's diverse list of participants - Iran, the US, India, Pakistan, to name only a few - this struggle to find meaningful conclusions that could be signed by all was rather predictable.

The Study concluded that the "issues identified in the present report...need to be further explored".16 A consequent vote to continue the work of the Study Group was passed by the First Committee on October 23 by a vote of 90 in favour, 2 against, and 57 abstentions. On November 22, the General Assembly passed the same resolution (57/71) by 104 votes to 3 with 60 abstentions. The states voting against both resolutions were Israel and the US (with Micronesia on the GA vote), whilst the abstainers included the EU members, none of whom voted in favour. This was perhaps the only practicable move for the latter, since it is difficult to imagine EU members voting for such a resolution if the US was against, whilst joining the US in opposition would hardly encourage states such as Iran to join the Code. Nonetheless, it does make the professed support for the Study Group look like flim-flam at best and dishonesty at worst, and the impact of the vote remains to be seen.

The Hague Launch

By the time of the launch meeting in The Hague, China, India and Pakistan had all publicly announced that they would not participate, the DPRK, Egypt, Iran and Israel were highly unlikely to do any different, and Iraq was still excluded. In order to have starting credibility, the Code would need to attract at least some of the states that were at the forefront of concern over missile activities, and thus preliminary indications were not promising. In the event, none of these states showed up. Brazil was also noticeably absent, the only one of the 33 members of the MTCR not to participate. The one bright spot was the attendance of Libya, perhaps saving the launch from being a comprehensive damp squib.

(i) The Text of the Code

The text that was signed at The Hague is in most respects the same as that which was agreed last year at the MTCR's Ottawa Plenary, with one noticeable change. The Ottawa draft contained a section stating that signatories would consider "cooperative measures" with states that had eliminated and/or forgone ballistic missile programmes. These would be considered on "a case-by-case basis between those subscribing states requesting such cooperation and those subscribing states willing and able to offer it". This has been cut, and the final text contains a single sentence in the preamble stating that signatories "may wish to consider engaging in co-operative measures among themselves", a statement so insipid that there seems little point in retaining it at all. Certainly it is far too meaningless to entice any states that view the possibilities of SLV cooperation as one of the benchmarks of a credible and equitable missile non-proliferation regime. Aside from some minor semantic changes, and some clarification on how the Code will be organized, there are no other significant changes, and therefore the Paris and Madrid meetings changed little or nothing in terms of the text. In fact, the only significant change, the Cooperation section, was likely to make the Code less, not more, attractive to the states intended to be engaged through those meetings.

(ii) Statements at the Launch

The first day was an open session, and was given over to statements made by attending states. A number of general themes emerged from the remarks. The first, encouragingly, was a refusal to duck or gloss over two of the most outstanding aspects of the Code: the extremely tentative nature of its actual requirements, and the disappointing list of subscribing states. The tone was set by the Dutch Chair of the first session, who described the Code as "a first step, and a modest one" and said that engaging the states not present was "the main challenge". This view was echoed again and again, with one notable exception: Undersecretary of State for Arms Control and International Security John Bolton announced that the US was "not concerned" about states that had chosen not to participate. It was, he said, "far better to know who is actually prepared to live under its terms, and who is not".

A second theme was, predictably, space. This was alluded to by Argentina, Germany, Ireland, the UK and Ukraine. Argentina and Ukraine both stated that the Code must not block access to peaceful exploitation of space and SLV technology, with Argentina arguing that "the general behaviour" of states should be taken into account when making judgments about cooperation in this field. This is a natural position for a state that has forsworn ballistic missiles, participated fully in weapons of mass destruction (WMD) regimes and the MTCR, and yet still finds its access to SLV technology blocked by export controls. Ireland spoke in support of technical cooperation in order to draw non-signatories into the Code framework. Germany and the UK both stated that the Code did not in fact block the peaceful use of space. The UK statement paid particular attention to this, arguing that the Code had the potential to strengthen cooperation on the legitimate uses of space. Genuine civilian SLV programmes, it was said, had nothing to fear from the Code (although it might be added that it is not access to space that is the issue, but access to technology).

A third theme was the politically binding nature of the Code's provisions. At a press conference, the Dutch Foreign Minister, Jaap de Hoop Scheffer, conceded that legally binding provisions would be better, but argued that politically binding provisions placed "peer pressure" on signatories to comply. Similarly, France noted that politically binding provisions rely on "goodwill" to be implemented, and Russia and the Czech Republic argued for the Code to be made into a legally binding document. Again, John Bolton disagreed, arguing that it was of comparatively little importance whether the Code was politically binding or legally binding: "the real issue is not the nature of the commitment, but the extent of the political will to comply with the code that signatories demonstrate".

A fourth theme was how the Code was to be implemented and organised. Canada argued that a minimalist approach was necessary here, and that is in fact what happened. The Code is to be organised on the MTCR model: the Chair will revolve between members on a yearly basis, and there will be a central administrative point of contact. The first Chair of the Code will be the Netherlands; the point of contact will be in Vienna.

Some more specific points can also be flagged up here. One is the presence of Libya, which still features regularly as state of proliferation concern in the US and elsewhere. Stories have occasionally circulated about Libya's alleged missile activities, including unsubstantiated allegations of Nodong (North Korea) or Shahab (Iran) imports; the state also remains a non-signatory to the Chemical Weapons Convention. The statement of the head of delegation touted Libya's record on WMD and their means of delivery, signally failing to mention allegations about offensive chemical and biological weapons. He also called for the Code to be renamed the "Code of Conduct on Prohibition of Production, Use, Stockpiling and Transfer of Ballistic Missiles", and implicitly invoked Article VI of the NPT by calling for such a Code to contain a provision for the destruction of all nuclear warheads with no distinctions between states and regardless of 'nuclear-weapon state' status. John Bolton then called Libya's record on WMD into question, claiming that Libya was known to be pursuing biological weapons in breach of its commitments under the Biological Weapons Convention (BWC). This provoked a sharp response from the Libyan delegate, who refuted the allegation and rhetorically asked when the US itself would "live up" to its WMD commitments, another implicit reference to Article VI.

This minor spat aside, the statements made at the conference tended to fall squarely into the type of regional concerns that might be expected from a gathering of states from Europe, Africa, Northeast Asia, the Americas, etc. States such as Ghana and Sudan emphasized the problems confronted by so many states in the developing world, with the Ghanian statement arguing that control of missiles would help to "deliver the have-nots" from WMD threats and allow them to concentrate on the real threats to human security: HIV, poverty, disease. Contrastingly, Central and Eastern European states were careful to stress their commitment to export controls, without which they are unlikely to gain entry to the EU. The US statement concentrated on missile defence as "complementary to, and consistent with the objectives of, the ICoC and the MTCR", on "the will to comply" as lying at the heart of any regime (hence the comments, cited earlier, about non-subscribers), and on a refusal to allow the Code to "limit our right to take steps...necessary to meet our national security requirements".

Conclusion: What Now?

The choice now lies between changing or developing the Code in order to attract non-subscribing states, and persuading the non-subscribing states to change their policy on the Code. The two are not incommensurable, but neither looks especially promising at the moment.

India and Pakistan pursue Code-style measures, such as launch notification, already, and in the future they may agree further measures going beyond those in the Code. It is not the measures themselves that kept India and Pakistan from The Hague, but a combination of the Code's provenance and a global context of perceived discrimination in nuclear disarmament, export controls, and SLV technology. It is therefore difficult to foresee either state undergoing a change of heart in the foreseeable future. They are not inimical to missile control, but rather are suspicious of control in this context.

The DPRK, in pledging to indefinitely extend its missile test moratorium, has also gone a step beyond anything contained in the Code. It refused, however, to attend the Paris or Madrid meetings, threatened to cancel the moratorium within a weeks of pledging it, and is currently once more the focus of proliferation concern after confused but disturbing disclosures about its uranium enrichment programme. Again, it is difficult to foresee Pyongyang subscribing any time soon, but on the other hand few states are quite as unpredictable as the DPRK and nothing should be ruled out. Iran's policy towards the Code is also difficult to predict. An Iranian delegation attended the Paris meeting, but pulled out of Madrid at the last minute. The UN Study Group was set up under Iranian sponsorship, but stories continue to surface of Iran's own missile activities. China and Israel both declined to subscribe for similar reasons: the Code's CBMs could not be selectively applied in order to suit their own national security strategies. Since introducing such a facility would leave the initiative even more tentative than is currently the case, it is unlikely that these arguments will find their way into the text of the Code.

Where does this leave us? With an initiative that is high on quantity - a respectable total of nearly 100 states attending the launch - but low on quality - the Code's measures are limited in the extreme, and several countries of greatest proliferation concern have failed to subscribe even to these steps. This is testament less to the deficiencies of the Code than to the sheer intractability of the problem it seeks to address. Given the inherent difficulties, the Code's underlying philosophy - that the best first step is one that the most can make - is a sound one. Ambitious schemes for global bans lack credibility, given the international distribution of ballistic missiles from the P5 to the 'axis of evil', the fact that the Code's drafters are MTCR members and thus regarded by some as possessing suspect non-proliferation motives, and the simple truth that missiles are delivery systems rather than weapons and stigmatising them is thus extremely difficult. On the other hand, unambitious schemes risk allowing the problem to get worse before it gets better, and may implicitly legitimise the very thing they seek to control. Faced with such a choice, it is surely better to adopt a step-by-step approach, whilst still maintaining a clear vision of where we want to go. The lesson of the Code's launch is that there is even further to go than might have been thought. Watch this space.

Notes and References

1. For the full text of the Code, a list of the initial 93 member states, and statements and documents from the launching conference in The Hague, see the website of the Acronym Institute for Disarmament Diplomacy.

2. For relevant excerpts from the General Debate, see the Acronym website.

3. Ncumisa Pamella Notutela, Representative of South Africa, Statement to the UN First Committee General Debate, October 2, 2002; see Acronym website.

4. Celina Assumpcao, Representative of Brazil, Statement to the UN First Committee General Debate, October 9, 2002; see Acronym website.

5. Rakesh Sood, Representative of India, Statement to the UN First Committee General Debate, October 7, 2002; see Acronym website and website of the Indian Ministry of External Affairs, http://www.meadev.nic.in.

6. ibid.

7. 'Report of the Secretary-General: Missiles', UNGA A/57/114, June 26, 2002.

8. 'International Response: EU Works to Finalise Missile Code of Conduct', Global Security Newswire, http://www.nti.org, August 23, 2002.

9. Alaa Issa, Representative of Egypt, Statement to the UN First Committee General Debate, October 7, 2002; Acronym website.

10. 'International Response: Pakistan Rejects Missile Code of Conduct', Global Security Newswire, November 20, 2002.

11. Replies Received from Member States: Israel. In, 'Report of the Secretary General: Missiles', UNGA A/57/114, June 26, 2002.

12. 'International Response: China Hesitates to Sign Missile Code of Conduct', Global Security Newswire, November 12, 2002.

13. Replies Received from Member States: Japan. In, 'Report of the Secretary General: Missiles', UNGA A/57/114, June 26, 2002.

14. 'Report of the Secretary-General: The issue of missiles in all its aspects', UNGA A/57/229, July 23, 2002.

15. Ncumisa Pamella Notutela, Representative of South Africa, Statement to the UN First Committee General Debate, October 2, 2002; see Acronym website.

16. 'Report of the Secretary-General: The issue of missiles in all its aspects', UNGA A/57/229, July 23, 2002.

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

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