the hcoc: current challenges and future possibilities · the hcoc: current challenges and future...

THE HCOC: CURRENT CHALLENGES AND FUTURE POSSIBILITIES

By Dr Mark Smith, Defence & Security Programme, Wilton Park

This document has been produced with the financial assistance of the European Union. The contents of this document are the sole responsibility of the FRS and can under no circumstances be regarded as reflecting the position of the European Union.

TABLE OF CONTENTS

1 Why the HCoC? .................................................................................................................................................... 5

1.1 The motivations for the HCoC ................................................................................................................... 5

1.2 Why a code of conduct? ............................................................................................................................... 8

2 Why has it struggled? ............................................................................................................................................ 9

3 Paradoxes of the HCoC ..................................................................................................................................... 11

4 Challenges and Opportunities: Where Does the HCoC Go From Here? ................................................. 12

4.1 Universalisation (I): membership .............................................................................................................. 13

4.2 Universalisation (II): technology ............................................................................................................... 14

The HCoC: Current Challenges and Future Possibilities

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The Hague Code of Conduct (HCoC), currently the only game in town on its topic, marked its 10th anniversary in 2012. It has generated membership comfortably into three figures, and its supporters have tried valiantly to help it make progress. However, even its most enthusiastic admirers would concede that has not fulfilled the hopes and expectations of its founders when they gathered for the opening ceremony in November 2002. Those hopes were for expanded membership and for further development of its substance: the membership has indeed expanded but not to the most pertinent states, and the substance of the Code remains exactly as it was when it was founded.

The principal reasons are problems during the Code’s drafting process, which were not properly resolved at the time and have festered ever since; the partial nature of the Code’s provisions, which cover ballistic missiles but no other kind; and the inherent difficulty of demand-side controls on missiles, something that is often under-analysed and under-appreciated.

Why has the HCoC come up short of the founders’ ambitions? Is it possible for the challenges to be overcome, and for the HCoC to become something more akin to the aspirations of its founders? This paper attempts to answer these questions and to offer some prescription for how progress might be made. Some of the challenges can be overcome with enough imagination and willingness to change; others, and in particular those arising from the Code’s roots and drafting process, cannot be changed and progress will depend on a readiness to let bygones be bygones.

1 WHY THE HCOC?

Since many of the Code’s travails are rooted in its origins, the place to start is an assessment of those origins. This section of the paper looks at what drove the establishment of the HCoC, and at why it is a code of conduct rather than something more ambitious.

1.1 THE MOTIVATIONS FOR THE HCOC

Missile non-proliferation has ebbed and flowed in global security politics, and the Hague Code of Conduct Against Ballistic Missile Proliferation (HCoC) was a product of the late-1990s flow, driven by a combination of concern at perceived decline in supply-side strategies like the Missile Technology Control Regime (MTCR), and the last dregs of the 1990s surge in multilateral non-proliferation that had produced the Comprehensive Test Ban Treaty (CTBT) and the indefinite extension of the Nuclear Non-Proliferation Treaty (NPT).

The initiative that was to become the HCoC was first drafted within the MTCR (a source of criticism ever since), and can be seen as driven by four motivations. The first of these was the growing evidence that the spread of missiles, particularly longer-range ballistic ones, had been slowed but not stopped by the export controls of the MTCR. In fairness, few if any of that regime’s members had ever expected export controls to halt missile proliferation, but as long as the missiles concerned were limited in range, their spread represented a significant military headache but not yet a serious strategic threat. During the 1990s, however, disturbing patterns of


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missile technology proliferation suggested that the sell-by date of that assumption might be approaching sooner than anticipated.

The most potent evidence of this came in 1998 with the North Korean launch of its Taepodong missile. Tested in satellite-launch mode, the test failed after the later stage disintegrated in the upper atmosphere (although North Korea continues to insist that it in fact successfully launched its satellite). However, certain aspects of the test, such as stage-separation and upper altitude ignition, seemed to work sufficiently well to suggest that a successful design might not be far away, or at the least appreciably nearer than hitherto thought. The potential implication of that was far-reaching: the Scud missile technology which formed the base units of the Taepodong might be adaptable to ranges well beyond that of standard theatre missiles. Scud missiles were heavily proliferated, to the extent that the phrase “the ubiquitous Scud” became commonplace in the 1990s, and moreover Scud technology was circulating among states that had become the focus of proliferation concerns. The possibility, however distant, of the technology being adapted to inter-regional or even inter-continental range meant that Scud missiles might transform the strategic balance. Consequently, the new patterns of missile proliferation looked likely to present much more significant strategic problems and to be much less susceptible to export controls.

The second motivating factor that produced the HCoC was the existing imbalance in the missile non-proliferation regime, which was characterised by the strong supply-side controls of the MTCR but no multilateral demand-side controls. In other words, the global regime was effectively half a regime, and MTCR members had always been conscious of this. This has long been regarded as something of a ‘hole in the fence’, so to speak. Most or all multinational debates on controlling proliferation include the phrase “and their means of delivery” when discussing WMD, and there was a time – now passed, it seems – when inter-governmental debate about the future of non-proliferation felt incomplete without additional work on how to establish demand-side controls on missiles.

‘Means of delivery’ is a loose term, and strictly speaking can refer to anything used to transport WMD to their target, but it can be principally understood as a tacit reference to missiles. Strategies for control of delivery systems have tended to concentrate on ballistic missiles, which in turn are principally associated with nuclear weapons. The former is quite possibly a mistake, as Dennis Gormley has regularly argued1, because cruise missiles can pose significant threats of their own. Moreover, there is a political cost of focusing on ballistic missiles, which is discussed below. Nonetheless, the link between ballistic missiles and nuclear weapons – and thereby between non-proliferation of the two – is long-standing and strong. Virtually every state that has a nuclear weapon, or attempted to develop one, has had a ballistic missile programme to go with it, and the principal states of proliferation concern during the 1990s and 2000s have all followed this pattern (as have, it should be pointed out, all of the de jure nuclear weapon states).

MTCR members were conscious of this throughout the 1990s, as they were of the lack of demand-side norms which would give legitimacy to their supply-side ones. Constructing such a

1 Dennis M. Gormley, Missile Contagion: Cruise Missile Proliferation and the Threat to International Security, Naval University Press, 2010.


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regime held the promise of two benefits. First, it would beef up control of nuclear weapons; a state attempting to build a nuclear weapon faced the additional challenges of heavily-curtailed availability of delivery system technology, and thereby the technological, financial and political costs of a nuclear weapon were correspondingly raised. Moreover, a state that was allegedly in good standing with its NPT obligations, but had a suspect nuclear energy programme, might be considerably easier to identify as a proliferation threat if it declined to subscribe to voluntary norms on delivery systems. Control of ballistic missiles therefore was viewed in instrumental terms as a way to make control of weapons more effective.

A third motivation, closely related to the second, is a shortfall in non-proliferation legitimacy for the MTCR. Even the Regime’s strongest advocates and supporters would concede that it has what might tactfully be described as an image problem: it places strong restrictions on the transfer and export of missiles, component parts and associated technology, but the most sophisticated and longest-range missiles in the world are held by MTCR members. In that light, it is very difficult for the MTCR to present itself as a simple non-proliferation mechanism working in the service of the WMD regimes. The MTCR has consequently attracted strong criticism from several states that regard it as a mechanism to protect technological monopoly. Restrictions in missile exports, and a commitment to preventing the spread of long-range missiles by states that themselves possessed the longest-range missiles in existence, could not fail to be resented: what legitimate basis other than a desire to maintain technological advantage, critics argued, did states such as the US or UK have for placing stringent restrictions on the export of the sort of technology they deployed through the Trident system? Straightforward power politics might explain it, but the attempts to defend export controls as part of global non-proliferation interests were regarded in many states as offensive. A statement in the UN First Committee by Pakistan summed up that resentment well: “states which reserved the right to deploy thousands of missiles were now seeking to prevent developing countries from developing missiles for legitimate self-defence. The international community must resolutely resist that discriminatory trend”2.

The fourth motivation is harder to pin down, and is related more to the atmosphere of the late 1990s than to the MTCR or to missile proliferation. Put simply, it is a mistake to underestimate the potency of multilateral approaches to non-proliferation at this time. It has, for good reason, become more commonplace to think of the late 1990s in terms of challenges to global non-proliferation: the South Asian nuclear tests in 1998 that produced the first declaratory nuclear-armed states since the NPT was signed, the failed ratification of the CTBT in the US, the North Korean Taepodong test. However, a policy official looking at the package of ideas that became the HCoC in 1998 would perhaps have been more inclined to think of the time in terms of positive developments: the negotiation and signature of the CTBT, the signature and entry into force of the CWC, the indefinite extension of the NPT, and so on. That official might have good cause to be optimistic about the prospects for a multilateral solution to the challenges of proliferation.

2 'Promotion of Nuclear-Weapon-Free Status of Southern Hemisphere Called For in Draft Resolution Approved by First Committee', UN Press Release GA/DIS/3192, 31 October 2000.


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These four drivers – new patterns of proliferation, the need to develop stronger legitimacy for MTCR controls outside the current membership, the incompleteness of the missile non-proliferation regime, and an underlying sense that demand-side multilateralism still had the wind at its back – were the decisive factors in generating the HCoC.

1.2 WHY A CODE OF CONDUCT?

None these factors were solely recognised within the MTCR. On the contrary, a growing body of analysis and lobbying emerged during the 1990s. This analysis tended to be driven by the close link between missiles (especially ballistic missiles), and WMD (especially nuclear weapons). The strength of this link can be demonstrated by pointing out one simple fact: every state that currently has a nuclear weapon, or is suspected of having covert intentions to develop one, also has a long-range ballistic missile programme. As Aaron Karp has pointed out: “where you see one, you will, sooner or later, see the other”.

These studies tended to argue or assume that global controls on WMD delivery systems ought to resemble those of the weapons they were actually delivering. This resemblance usually meant two things. First, it produced calls for ballistic missiles to be banned technology: the ‘zero ballistic missile’ or ZBM proposal that was floated by Lora Lumpe in the 1990s and more recently by Steve Andreasen. Second, it implied that ballistic missiles be delegitimised or taboo. Again, Aaron Karp noted this: “Until we have a norm establishing that ballistic missiles are a taboo, just as landmines and biological, chemical, and nuclear weapons are for most countries already, we will not have a strong missile technology control regime”3. To be sure, those arguing for such far-reaching measures also discussed more limited near-term steps that could be taken, such as flight test bans, but they were usually discussed as part of a longer-run process that would eventually mean that the long-range missile would be subject to an international ban.

The Code takes a different approach, and is no more than a set of confidence-building measures. It makes no reference to bans, and offers only a plea for subscribing states to exercise the maximum possible restraint in their missile development and deployment. This should not be taken to mean that its drafters had no vision for the future of ballistic missile non-proliferation beyond the CBMs of the HCoC: a glance through the statements made at its opening ceremony in 2002 shows how many subscribers referred to the Code as a first step in a longer journey. Nonetheless, although its text asks for commitment to restraint, the Code’s only real stipulations are that its members state policy on missiles and inform each other of when they plan to conduct test launches. The reasons for this reticence are significant.

The prime reason was that the Code’s drafters, being MTCR members, were keenly aware of how that Regime was regarded outside its membership and just as keenly aware that the HCoC could not ask any state to take on measures that the drafters were not ready and willing to implement themselves. It is therefore reasonable to assume that the precepts contained were as far as the drafters were prepared to go on implementing controls on their own missile programmes (which were, as we have seen, often extensive). Certainly it is impossible to imagine

3 Aaron Karp, “Going Ballistic? Reversing Missile Proliferation”, Arms Control Today, 35(5).


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the P5 states, for example, voluntarily subscribing to a global rollback of missile numbers, and the sort of compromise encapsulated in NPT Article VI (i.e. establishing missile haves and have-nots) was similarly out of the question. The decisive factor was a pragmatic one: what measures could the widest possible number of states be expected to support? What was the lowest global common denominator on missile norms?

As the text of the HCoC shows, that lowest common denominator is very low indeed, and even then many states have been resolutely unwilling to subscribe despite the fact that membership is highly unlikely to have prevented them doing anything they did not already plan to do. This may be due less to the measures themselves than to lingering distrust of the HCoC itself, but the bottom line is that the Code was designed to have wide applicability rather than ambition. Or, putting it more kindly, its ambitions lay in wide membership rather than in far-reaching controls.

A second reason for the mildness of the HCoC’s measures is that rollback and bans of ballistic missiles constitute an exceptionally difficult enterprise. The source of this difficulty is that ballistic missiles are dual-use in more ways than one. They are dual-use in the traditional sense of having peaceful and violent uses – they can be used for launching satellites just as easily as for launching weapons – but also dual-use in the sense of being used for conventional and non-conventional warfare. As noted above, every state that has a nuclear weapon also has a long-range ballistic missile programme, but missiles of all kinds are heavily embedded in conventional military strategies around the world. It should also be borne in mind that the only cases of ballistic missile use were in conventional warfare (that is, the V2 attacks in the Second World War, the War of the Cities in the Iran-Iraq War, and the Iraqi Scud attacks in the Gulf War). This second dual-use distinction means that any attempt to establish demand-side controls on missiles unavoidably means encroaching into conventional military strategy as well as the WMD non-proliferation treaties. To put it very mildly, that considerably complicates matters.

Combined, these two factors strongly militate against controlling ballistic missiles as missiles, and point towards the strategy of controlling certain types of missile behaviour. I have written elsewhere about why this is probably the strategy most likely to produce long-term results, but in the case of the HCoC it was practical politics as well as sound policy that decisively affected the way the text finally looked.

2 WHY HAS IT STRUGGLED?

The HCoC’s travails are, in part at least, a result of immutable reasons that its states parties can do little about. The most regularly-cited criticisms are that its origins in the MTCR make it a highly suspect regime, and that its drafting process was not sufficiently inclusive. The first of these is a reflection of the widespread resentment, mentioned above, of the MTCR itself, outside its membership. Its reputation in some quarters as a cartel means that the HCoC has found itself tarred with the same brush. The way the Code was drafted has also been the subject of much criticism. The text of the HCoC was drawn up within the MTCR process, a necessarily exclusive one, and although the text was discussed at two meetings outside that framework, that included states like Egypt (in Paris and Madrid in 2002), no amendments were made and the


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Code signed in 2003 was in all significant respects the Code that was presented to the 2002 meetings. Were those meetings part of a drafting process, a lobbying exercise, or a search for suggestions which subsequently failed to make the cut? It was never made clear, and consequently the text could be, and was, regarded as a fait accompli. Egypt said as much after the Paris and Madrid meetings: “Egypt engaged in good faith in the efforts to consider the HCoC 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”4. There is little the HCoC members can do about this: its ancestry and ‘original sin’ will remain.

Not all the HCoC’s problems are as set in stone, however. Its focus on ballistic missiles is another aspect that raises suspicions that it is more concerned with addressing the security concerns of MTCR members than with global non-proliferation norms. In 2001, Egyptian diplomat and analyst Alaa Issa pointed out that during the preceding decade, “the use of ballistic missiles in inter-state conflict was limited to about 90 missiles launched by Iraq during the Gulf War. The same period witnessed the use of approximately 1100 cruise missiles in strikes against Iraq, Afghanistan, Sudan and Yugoslavia, and all with a much higher degree of effectiveness”5. When we recall that this was written prior to the invasions of Afghanistan and Iraq after 9/11, it is plain that Alaa Issa’s pertinent point is unlikely to have been nullified or even ameliorated by subsequent events. On the contrary, the balance has since markedly increased towards cruise attacks.

This incontrovertible fact is one of the strategic drivers behind missile proliferation. With high-tech and super-accurate cruise missile technology available only to states such as the U.S. and its allies, other states tend to resort to less-accurate ballistic missiles as a response. The MTCR encompasses both cruise and ballistic missiles, of course, but the HCoC only includes ballistic missiles. The Code’s proponents would protest that there are sound reasons for this, relating to the strong link between those missiles and nuclear weapons, and the technological attributes of ballistic missiles – especially speed and relative imperviousness to defence. Nonetheless, the fact that the MTCR’s first and thus far only attempt to establish demand-side norms focused exclusively on missiles that they possessed in abundance but never used in conflict, while those that were used remained untouched, has both highlighted and reinforced the perception of the HCoC as inherently discriminatory and concerned only with the maintenance of strategic advantage.

A final, and corrosive, challenge to the HCoC’s prospects emerged when it became clear that the Code’s own members were not fulfilling their obligations to report missile policies and launches. Russia announced in January 2008 that it would no longer provide pre-launch notification to fellow Hague Code of Conduct members, but noted, “other participants, including the United States, are also not fully implementing their commitments.” The U.S. had always stated that it would implement its launch notification commitments via the bilateral U.S.-Russian Joint Data Exchange Centre in Moscow, but for many years – before and during the HCoC’s

4 Alaa Issa, Representative of Egypt, Statement to the UN First Committee General Debate, October 7, 2002. 5 Alaa Issa, “The Drivers Behind Missile Proliferation”, Missile Proliferation and Defences: Problems and Prospects, Occasional Paper n°7, Center for Nonproliferation Studies (CNS), Monterey Institute of International Studies (MIIS), May 2001.


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existence – that body remained moribund. A U.S. announcement to its HCoC partners in May 2010 that it would now give pre-launch notification of “commercial and NASA space launches as well as the majority of intercontinental ballistic and submarine-launched ballistic missile launches” was to be welcomed, particularly if this unlocks Russian compliance with HCoC commitments, and thereby full compliance by other members. Marius Grinius, the Canadian Ambassador to the UN Conference on Disarmament, noted to that body in February 2008 that the HCoC was “falling into disuse”6, and the lack of full compliance with the Code’s provisions by states parties is an impediment, to say the least, to making the HCoC an attractive proposition to potential new members.

3 PARADOXES OF THE HCOC

At the heart of the HCoC lie two paradoxes, of ambition and of membership, that tell a story about why it has encountered such difficulties. The paradox of ambition in the HCoC is that those ambitions were at once limited and far-reaching. They were limited in that, as the text of the Code shows, the provisions of the HCoC and the obligations placed on signatories are strikingly modest. The Code did not attempt to ban or proscribe ballistic missiles but requires member states to observe “maximum possible restraint” in ballistic missile “development, testing, and deployment”, and to adopt basic rules of transparency. The two transparency- and confidence-building measures required of states joining the HCoC are, first, a declaration of missile and space policy, and second, pre-launch notification (PLN) of missile tests and space rocket launches. The former is still vaguely defined in the Hague Code, as is the concept of ‘restraint’. This vagueness was deliberate and probably necessary, in view of the sensitivity of such information, and since not all states regard transparency on such matters as beneficial. Specifications on PLNs are more explicit. They call for “information on the generic class of the Ballistic Missile or Space Launch Missile, the planned launch notification window, the launch area and the planned direction”, but still leave a good deal of the format and content to the discretion of the submitting state.

That the HCoC’s ambitions were simultaneously far-reaching is, oddly enough, hinted at by the modesty of the provisions. Those provisions were never intended to be the end of the matter; instead, the HCoC was intended to develop into a global, multinational regime on ballistic missile possession. This would be a new regime in international politics, one that faced difficulties all of its own in terms of negotiation and implementation. The statements made at the HCoC’s launch conference in the Hague are testament to the idea of the Code as the seed for something bigger, as again and again states parties noted the modesty of the HCoC’s provisions and stressed that it was no more than a first step.

The paradox of membership in the HCoC lies in the fact that its membership can be considered very wide and unacceptably narrow at the same time. It is wide in the strictly numerical sense: 137 states are party to the Code, 41 of which have subscribed since the launch

6 Final Record Of The One Thousand And Eighty-Ninth Plenary Meeting Held at the Palais des Nations, Geneva, on Tuesday, 12 February 2008 CD/PV.1089.


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in November 2002. It is narrow in the sense, mentioned above, that too few key states have joined it. Brazil, China, Egypt, India, Iran, Israel, North Korea, Pakistan and Syria – all of whom can be seen as crucial to a regime with a credible claim to global relevance – remain resolutely outside the HCoC, and there appears to be a slim prospect of any undergoing an imminent change of heart. The only states with significant missile programmes on which to base their annual policy declarations remain those states that were the HCoC’s authors; the Code, in short, has signally failed to attract the major outliers to join.

4 CHALLENGES AND OPPORTUNITIES: WHERE DOES THE HCOC GO FROM HERE?

The preceding analysis may seem relentlessly gloomy, and it is true that, more than a decade after it was established, the HCoC is some way short of where its founders and supporters hoped and thought it might be. Those who, like this writer, attended the Code’s launch in The Hague in 2002 will remember how many of the national statements tended to stress two things: that this was a modest first step in missile control, and that it was necessary to bring other states on board.

Given the lack of any other demand-side multilateral regime on missiles, the choice confronting the international community is, in fact, quite stark: the HCoC must somehow be made more effective, or else it is time to either wind it up and start again with a different regime, or give up on multilateral missile control altogether. The last of these is unattractive for many reasons, although not completely out of bounds; the second might be welcomed by some of the HCoC’s more implacable critics but would involve a sizeable amount of work. The experience of the UN Group of Governmental Experts does not give cause for optimism here, since one member of the group commented, dejectedly but accurately, “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”. It may well be that the HCoC problems cannot be overcome sufficiently to make it attractive to non-signatory states, but before accepting this it should be possible to make a concerted push – perhaps the final one – to find ways around these problems.

The tragedy of the HCoC’s current moribund state is that its step-by-step approach – the belief that norms on missiles must be constructed slowly rather than by trying to establish bans or prohibition – is almost certainly the right one for a successful non-proliferation policy on missiles. But it has thus far failed to make progress. The principal challenge can be stated easily: states such as Egypt and Israel have made their position on the HCoC perfectly plain, many times over, and they are highly unlikely to change that position if previously-stated pleas are simply repeated. Lobbying will not work; if it could, we would have seen results by now. Those states require cogent, persuasive reasons to re-consider their view. How can this be done?

The first, and most vital, step is to reinvigorate the Code internally. Put bluntly, states that cannot rouse themselves to participate properly in a regime of their own creation cannot reasonably expect non-signatory states to wish to join that club. Until this reinvigoration is done,


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recommendations for attracting further participation are likely to be meaningless and a waste of political and intellectual energy. Moreover, this first step ought to be the least intimidating one that I am recommending in this paper; the Code’s precepts for members are unambiguous and undemanding, and asking signatories to implement them properly is not placing an onerous burden on those states. Signatories need to reflect on why implementation has been patchy: is it a decline of faith in the idea of multilateral demand-side controls on missiles? A decline in concern about the global missile threat? Or, perhaps, a decline in support for the HCoC alone in spite of efforts to facilitate the annual declaration process, and on-going examination of how to further simply the nil format?

Answers to those questions are likely to differ among signatories: some will point out, with sound cause, that missile threats do not loom large in their security calculations when compared with the threats posed by the arms trade, poverty eradication and domestic conflict, and that they cannot be expected to afford the Code a high priority. Others may feel that the HCoC’s problems, particularly its provenance, have turned out to be largely insurmountable. Whatever the roots of doubts, it is time to reach a clear collective decision. The Code is either important or it is not; if the former, then a joint re-commitment to implementing its requirements is needed. This can involve, in the immediate run, a jointly-stated affirmation of commitment, and in the short run, a full implementation of requirements. The US announcement about its pre-launch notification policy should prove an important step in attaining that goal of full implementation.

If that can be done, attention can then – and, I submit, only then – be turned towards how the HCoC’s membership can be made more meaningful in missile terms. Full implementation is necessary, but not sufficient, for a broadening and deepening of the Code. As stated above, the task is to persuade those states that have thus far declined to join to re-consider. This can take two forms – reform of the Code to take account of their concerns, and persuasion through a pre-signatory process. I have placed those two in that order because it is clear, or ought to be, that persuasion by itself would have produced results by now if the HCoC in its current form possessed enough attractions as a non-proliferation instrument to draw in the non-signatory states. Changes must be made to the Code itself.

Moving the Code closer to the UN is an obvious step, and this process has been under way for some time now. As well as offering the purely pragmatic benefit of helping remove the stain of provenance, this is also sound non-proliferation policy, as the natural home of a multilateral regime ought to be the UN.

The problems of generating better membership, but also the solutions, can be packaged together under the umbrella term ‘universalisation’. The HCoC, still the only game in town on missile non-proliferation but something of a ghost town at the moment, does have the capacity and the approach that can revitalise it.

4.1 UNIVERSALISATION (I): MEMBERSHIP

The Code is genuinely global in its scope: it has member states in the Middle East; South, Central and North America; East Asia, West and East Europe; Africa; Eurasia. South Asia is the


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most obvious missing region from that list, but otherwise the Code has an enviable geographical scope when considered purely in terms of numbers and regions. Nonetheless, the list of states that are not members is significant. Of the 30-plus countries that have WMD-capable ballistic missiles, 14 remain outside the Code. As well as India and Pakistan, China, Egypt, Iran, Israel, and North Korea have all declined to join. All these states have very significant ballistic missile capabilities, and there is at the moment very little prospect that they will change their position on HCoC membership. The bottom line is that while nearly all regions of the world, including those where proliferation and the risk of conflict are high, are included in HCoC membership, the main gaps in membership are in those same conflict-prone and proliferation prone regions. This does mean that the HCoC’s short-run aim of helping in confidence building in non-proliferation, and its long-run one of generating a global sensibility on missiles, are both failing to make significant headway.

There are a variety of reasons given for this. These can be related to the measures that the HCoC contains, which are about generating better transparency as a way of building confidence about intentions. Transparency measures, while often regarded as a valuable tool for ameliorating tensions and latent hostility, are also regarded by some with a degree of suspicion. Other reasons for declining to join the Code are more focused on unhappiness with the way it was drafted and also concerning its real motives.

This membership shortfall is a priority for the HCoC, and it is an unenviable task. Those states cited above are not just the outstanding non-members, but are also the Code’s strongest critics, and with the very possible exception of China it is very difficult to see them changing their minds. To be sure, successive Chairs of the HCoC have made this a priority, and an extensive number of airmiles have been clocked up in an effort to engage non-signatory states to reconsider and to thereby make the HCoC genuinely reflective of current realities of missile possession.

However, it is difficult to avoid the conclusion that if this lobbying was going to succeed it would have done so by now, and then to avoid the follow-on conclusion that it is the Code itself that needs to change and adapt. This in turn suggests that there is a direct relationship between universalising the HCoC and changing its precepts and scope. Universalization can be the consequence of those changes rather than the producer of them; in other words, trying to universalise membership now might in fact be putting the cart before the horse. Therefore, one conclusion is that there is a need to re-engage with those states that continue to stay outside the HCoC about their own stance on missile norms, the effect missiles have on security, and their views on making the Code more attractive to new membership. This means reconvening the meetings held in Paris and Madrid before the HCoC launch, but making it clear that amendment and change of the Code is a genuine possibility.

4.2 UNIVERSALISATION (II): TECHNOLOGY

At the HCoC’s 10th anniversary in November 2012, Ban Ki Moon encouraged the Code to “take into account” other missiles capable of delivering WMD, and namechecked cruise as the obvious example. This focus on ballistic missiles has long been a source of strong criticism of the


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HCoC: why, the critics ask, do only these missiles figure? There are a number of military advantages to ballistic missiles – their range and relative imperviousness to defences being outstanding – as well as the strong link between them and nuclear weapons. Dennis Gormley, among others, has long criticised the HCoC (and missile non-proliferation generally) for failing to take cruise missiles into account, and in fact the longer we go on the more the absence of cruise missiles in the Code looks like an anomaly.

For one thing, they are spreading – Pakistan tested a nuclear capable cruise missile in 2012, for example. The idea that the threat of missile-borne WMD, particularly nuclear-armed, was largely confined to ballistic technology appears to be less and less credible. Moreover, the absence of cruise missiles from the Code tends to lend weight to the argument that the Code itself is more about the sort of missiles that concern the West than about genuine non-discriminatory norm building.

Consequently, working to widen the Code’s scope to include any missile that can carry WMD (using the widely-used criteria of carrying 500kg to 300km) is well worth pursuing. It can certainly do no harm, and may be helpful. The same precepts can be applied – policy declarations, pre-test notifications, etc. – to these missiles as to ballistic ones. This would make for a fuller regime that could honestly say that all missiles capable of carrying WMD can be covered. In doing so, it would plug the Code more explicitly and more convincingly to the global WMD non-proliferation regimes. Thus far there has been little evidence that states parties are willing to try this step, but enough work on its practicality and necessity has been done by experts such as Dennis Gormley to allow for relatively quick assessment of desirability.

There is, however, a second form of technological universalization that might be considered. Mr Ban kept to WMD-capable missiles in urging the HCoC to widen its scope, but a further option is to consider expanding the Code to include conventionally-armed missiles. As noted above, cruise missiles armed with conventional warheads are by far the most-used missiles. Ballistic missiles can be and are (especially at theatre-range) armed with conventional warheads, and have been used before. Moreover, there is growing interest in the US and elsewhere about arming intercontinental-range ballistic missiles with conventional warheads.

This begs the question of whether missiles (any missiles) are only considered to be dangerous or destabilising when they are WMD-capable? If the answer is yes, then there is no real need to consider expanding the Code beyond its current boundaries with the possible aforementioned caveat of broadening the scope of the Code to include cruise missiles. If the answer is no, even a qualified no (i.e. not as destabilising as WMD-capable missiles), then it becomes necessary to think about whether a code of conduct on missiles generally might be in order.

Like expanding the HCoC to include WMD-capable cruise missiles, expanding it to include conventionally armed missiles has attendant complications as an exercise. Questions of range in particular become much more pressing (should, for example, short-range rockets be included? Should drones?). It is not an overstatement to say that this possibility requires a complete rethink of what the Code is for, which I will come back to later. However, it will recognise and account for the conventional/non-conventional dual-use aspect of missiles


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highlighted earlier in this paper. Missiles, to restate, are embedded in conventional strategy around the world. I think this means that missile non-proliferation strategy would be better advised to concentrate on controlling missiles as missiles, and focusing particularly on controlling certain kinds of missile behaviour rather than on controlling missiles as vehicles for carrying WMD.

Here HCoC has an inbuilt advantage. It makes no attempt to roll back possession or oblige its subscribers to make cuts. It simply asks for them to observe the maximum possible restraint, and leaves the definition of ‘maximum’, ‘possible’ and indeed ‘restraint’ to them. It is, to reiterate, a confidence-building measure based on the principle that transparency and openness about missile policy and testing is a worthwhile enterprise. This means that, in this respect at least, it is perfectly placed to be the vehicle for developing a global sensibility on missile behaviour.

Re-energising the dialogue

All of the above will naturally require a process of engagement and negotiation with the states still declining to subscribe. Such a process can be done within the UN, or perhaps by a revival of the meeting that took place between the HCoC’s drafting and signature, but will need to take place on a more equitable footing in which it is acknowledged that reform of the Code is a real prospect. This can be developed by reviving the 2002 meetings in Paris and Madrid, but with the offer of a clearer and more tangible effect on the HCoC provisions.

For this to be a realistic prospect, HCoC members must first agree that they are prepared to amend the text of the Code. This need not be taken as carte blanche to revise the text, but merely a willingness to consider the views of non-signatory states and work on how to incorporate them. The text as it stands is clearly unsatisfactory for many; therefore amending it on a consensual and agreed basis should be considered. This may be an unwieldy process, given that all HCoC members will need to agree to changes, but that is not an insurmountable problem. A consultative process with non-signatories backed up by a similar process with HCoC members can be streamlined to make it productive. A process similar to that which took place after the MTCR’s Noordwijk plenary, including a series of seminars with non-signatory states, would be a model to consider. As well as the immediate benefit of incorporating the views and concerns of non-signatories, this approach may yield secondary benefits by ameliorating the perception of the HCoC as discriminatory because of its links to the MTCR and its exclusive negotiation process. By giving non-signatories a say, and thereby a stake, in the shape of the Code, the HCoC’s ‘original sin’ could be nullified or at least soothed. Its origins in the MTCR will remain, although they may be moderated by strong support from the UN; the absence of genuine multilateralism in the drafting process can be rectified by re-introducing it now.

The question to put to non-signatories is what – if anything – would induce them to reverse their position; what would need to be included in the text? The question for signatory states is what are their ‘red lines’: what changes to the text are unacceptable? These questions should be relatively easy to find answers to. It is of course quite possible that the answers will be irreconcilable in that the minimum required by non-signatories is beyond the maximum


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signatories would accept; or it may be that the non-signatory states would not join the HCoC under any circumstances. In that event, what is the way forward?

This would be a most discouraging outcome for the HCoC itself, but not necessarily for its approach to the problem it seeks to address. As stated above, the criticism of the HCoC does not automatically mean that confidence building, restraint and transparency – the founding principles of the Code – are similarly unpopular. On the contrary, there is plenty of evidence that many states regard those principles as highly positive, even if their view of the HCoC is rather more jaded. Claiming that missiles in and of themselves are destabilizing or aggressive is very hard to sustain in global terms, and the suspicion that the Code is trying to apply such a principle selectively remains strong, but the claim that certain types of missile behaviour are destabilizing or aggressive is far less contentious. Many or perhaps most states would concur that, for example, testing a missile without warning neighbouring states, especially when the test is close to borders and/or in a time of heightened tension, is potentially destabilizing and that it would be better for all concerned if it did not happen. A Report submitted to the UN in July 2006 set out further thinking on this issue. If global norm-building is either infeasible at the present time, or tainted by the HCoC’s problems, then regionally-driven initiatives may well bear fruit if serious political effort is made.

I think the real challenge, and the real necessity, is to re-energise and revitalise the field of demand-side control on missiles. It is not only the HCoC that is struggling to make any real headway: missile non-proliferation has been in the political and analytical doldrums for some time now. Remedying this will require thinking first about what we trying to achieve with demand-side missile non-proliferation: to bolster and enhance the global WMD non-proliferation regimes or to further the cause of regional military stability? The two are closely linked but they are not the same thing. The security complexes of the Middle East, Northeast Asia and South Asia were prone to war and dangerous instability without WMD proliferation, which is better seen as the symptom rather than the driver of endemic insecurity.

If we really want rollback and control, and I would argue if we want to include the outliers in the sort of norms the HCoC promotes, we must be context-specific and therefore not global. This means, again, that we must accept that the HCoC may not be the vehicle – or perhaps not the only one – for demand-side missile controls. That should not be taken to mean the end for the HCoC. On the contrary, it is possible that the Code can re-invent itself as the international focal point for discussing multilateralism on missile control and the global benchmark for rules of the road, while regional codes of conduct may be vehicles better suited to making far-reaching progress. Like the other proposals set out here, that will require a reinvigoration of thinking about the enterprise of missile non-proliferation as a whole.

the hcoc: current challenges and future possibilities · the hcoc: current challenges and future...

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