Making the Hague Code of Conduct Relevant

Launched in November 2002 at a conference hosted by the Netherlands, the Hague Code of Conduct (HCoC) against the Proliferation of Ballistic Missiles is decidedly minimalist in its objectives. The HCoC, whose membership stands at 128 states, seeks to bolster efforts against the worldwide proliferation of ballistic missiles by agreeing on a set of general principles and commitments, amplified by modest confidence-building measures (CBMs). Rather than supplant the 34-nation Missile Technology Control Regime, which is a voluntary association of states whose members share certain nonproliferation goals and coordinate export licensing related to ballistic and cruise missiles capable of delivering weapons of mass destruction (WMD), the HCoC supplements the MTCR in its quest to establish broad international norms against the proliferation of ballistic missiles.

Given the HCoC's provenance in the MTCR, it was not surprising to see that this first attempt at norm building for missiles deals with behavior, not missile possession. Thus, the widest consensus, not just within the MTCR membership but in the broader international community as well, turned on the notion that unbridled ballistic missile proliferation was not in the best interests of peace and regional stability. Put another way, under an ideal approximation of the HCoC, the vast majority of states would adhere to existing space treaties, restrain their ballistic missile development, testing, and deployment activities, act cautiously in regard to transferring ballistic missiles to other states and furnishing technical support to state ballistic missile and space launch programs, and become as transparent as possible—given national security restrictions—with respect to ballistic missile plans and policy. [1] However limited the HCoC might be (namely, the absence of North Korea, Iran, India, and Pakistan from its signatories), the Code's benefits would seem worth the candle needed to sustain and enhance the HCoC's utility. As missile proliferation specialist Mark Smith puts it, "the benefits lie in the fact that subscription represents acceptance that anarchic, Hobbesian missile behavior is in nobody's interest, and that movement towards some basic rules of behavior, common and open to all, is both necessary and feasible." [2] To that end, the quest to broaden HCoC membership has succeeded modestly by adding 35 new member states since 2002 (from the original 93 to 128 today), albeit none of the states of foremost missile proliferation concern.

The Problem of HCoC Relevance

If, in the first place, the HCoC was never expected to possess the normative power of a legal treaty regime, such as the Nuclear Non-Proliferation Treaty (NPT), then why is there any question about the Code's continuing relevance? Two reasons suggest why this is the case. The first relates to the woefully inadequate seriousness of key signatories in implementing the HCoC's admittedly modest reporting requirements, consisting of annual declarations on missile policy and plans and pre-launch notifications (PLNs). Here, both the United States and Russia—the two states with the largest inventories of ballistic missiles and significant test activity—have failed in their implementation responsibilities. Absent U.S. and Russian compliance with these modest requirements, it seems doubtful that the Code's quest for universalization, or anything close to it, will remain quixotic.

Two recent developments suggest that changes in U.S. and Russian implementation behavior, especially on PLNs, may be in the offing. At the recently concluded G-8 Summit in L'Aquila, Italy, the leaders, including Presidents Obama and Medvedev, agreed "to uphold the importance of the Hague Code of Conduct against Ballistic Missile Proliferation, by promoting its universalization and full implementation." In perhaps a burst of zealous optimism, the leaders noted that they "are confident that all subscribing States will soon fully implement their commitments." [3] Even more hopeful was the agreement between Presidents Obama and Medvedev in Moscow, at the conclusion of their early-July deliberations on nuclear relations, to jump-start their long-dormant objective to share data from each country's early-warning systems on ballistic missile launches through the creation of a Joint Data Collection Center located in Moscow. Of course, for reasons of achieving some degree of military stability, Washington and Moscow have a long track record of transparency measures regarding missile tests, starting with the 1971 Agreement on Measures to Reduce the Risk of Outbreak of Nuclear War (aka the Accident Measures Agreement), which required notifications of missile tests occurring outside of respective national territories but in the direction of the other state. More substantial PLN agreements followed, including the Incidents at Sea Agreement, provisions in the Strategic Arms Limitation II Treaty (SALT II), which culminated in a comprehensive set of PLN provisions in the 1988 Ballistic Missile Launch Notification Agreement together the creation of Nuclear Risk Reduction Centers. [4] Now that movement toward implementing the JDEC in Moscow appears probable, it follows that both the United States and Russia will finally meet their obligations under the HCoC. From the launching of the HCoC in November 2002, the U.S. position has been that the notifications and annual declarations that it provides under the HCoC would be based on the U.S.-Russian Pre-Launch Notification System, an expected component of the JDEC. [5] Although the HCoC's PLN reporting requirements are insubstantial and seemingly mundane in comparison with the two nations' bilateral arrangements, their full implementation by Washington and Moscow is a critical necessity to the HCoC becoming a legitimate nonproliferation instrument.

The second reason for the HCoC's diminishing relevance is the absence of cruise missiles from the document's remit. Surely, the mere fact that the MTCR member states—who treat in principal if not practice ballistic and cruise missiles without normative or operational differentiation—were responsible for formulating the HCoC's remit as exclusively dealing with ballistic missiles left its unfortunate mark on state perceptions of acceptable and unacceptable missile activity. In effect, in launching the HCoC without addressing cruise missiles, the initiating states, including MTCR members, created the impression that while curbing the spread of ballistic missiles was in the best interests of peace and regional stability, the unbridled spread of cruise missiles somehow would have less pernicious consequences.

Ironically, since the creation of the HCoC, proliferation realities in the Middle East, South Asia, and Northeast Asia suggest that the Code not only failed to address half of the missile threat but also perhaps left out the most worrisome proliferation problem. While ballistic missile proliferation has gained some vertical momentum recently (India, Iran, North Korea, and Pakistan have all developed new medium-range ballistic missiles between 1,000 and 3,000km in range), its horizontal path has been reasonably contained. Since the end of the Cold War, overall trends show a significant net decrease in worldwide ballistic missile arsenals largely due to U.S.-Soviet arms control treaties. [6] Cruise missiles, on the other hand, show signs of both vertical and horizontal momentum. Of course, beginning in the 1960s, short-range (~100km) anti-ship cruise missiles (~75,000) spread globally to over 70 countries, including 40 in the developing world, but until very recently much more sophisticated land-attack cruise missiles remained largely the exclusive domain of the United States and the Soviet Union. Since 2004, however, land-attack cruise missiles have begun to spread contagiously across the Middle East, South Asia, and Northeast Asia. [7]

In the Middle East, Israel was once the sole country possessing land-attack cruise missiles, but now Iran appears to be pursuing cruise missile programs for both land and sea attack. Iran's surreptitious acquisition via arms dealers in Ukraine of at least six Russian Kh-55 nuclear-capable, long-range (~3,000km) cruise missiles in 2001 will also likely assist that country's quest to produce more sophisticated long-range cruise missiles for attacking land targets. Iran has also provided the terrorist group Hezbollah with unmanned aerial vehicles (UAVs) and sophisticated anti-ship cruise missiles, one of which severely damaged an Israeli vessel and killed four sailors during the 2006 war in Lebanon.

In South Asia, both India and Pakistan have become significant aspirants of land-attack cruise missiles for both nuclear and conventional weapons delivery. India, with Russian collaboration, is developing the BrahMos supersonic cruise missile that will have the capability to strike targets over land or at sea to a range of nearly 300km. India also disclosed in mid-2007 that it has at least two other land-attack cruise missile programs underway, including one similar to the U.S. Tomahawk with a range of 1,000km and another co-developed with Israel's help. In August 2005 Pakistan surprised the world by successfully launching its first land-attack cruise missile, called Babur, purportedly a nuclear-capable missile with a range of 700km. Two years later it tested a second land-attack cruise missile, named Raad, with a 350km range. Though Pakistan claims they are indigenously produced, both missiles appear similar to existing Chinese cruise missiles.

In Northeast Asia, China has deployed two new land-attack cruise missiles, complementing their huge inventory of ballistic missiles facing Taiwan. Taipei, for its part, first tested its HF-2E land-attack cruise missile in 2004 and seeks to extend its current 600km range to at least 1,000km, to reach targets such as Shanghai, and potentially 2,000km, so that even Beijing is within range. As many as 500 HF-2E cruise missiles were originally sought for deployment on mobile launchers. Not to be outdone, South Korea announced after North Korea's nuclear test in 2006 that it had four new land-attack cruise missiles under development with ranges between 500 and 1,500km. The South Korean press took immediate note that of the fact that not just all of North Korea but also Japan and China would be within range of these new cruise missiles.

Cruise missiles add a dangerous new dimension to the challenges of maintaining regional stability. Although cruise missiles are not destined to supplant ballistic missiles, when both are employed together, they could severely test even the best missile defenses. Thus, the spread of ballistic missile defenses may be hastening cruise missile proliferation. Knowing that such defenses are not nearly as effective against land-attack cruise missiles as they are against ballistic missiles, some states—including China, Pakistan, and Iran—are now developing new cruise missiles to complement their ballistic missile arsenals. Others that are planning to acquire missile defenses, like Taiwan, Japan, and India have decided to complement them with much cheaper offensive systems that include cruise missiles. Worse yet, most states are linking cruise missile use to preemptive strike doctrines. In either case, the unintended by-product is likely to be regional arms races and crisis instability.

The normative differentiation between ballistic and cruise missiles that the HCoC inadvertently transmits has its unintended consequences. Weak international norms related to cruise missiles have affected India's behavior with regard to the utility of CBMs and their attempted access to foreign cruise missile technology. With CBMs, although India has not subscribed to the HCoC, which does urge subscribers to implement pre-launch notifications, New Delhi has cooperatively pursued a missile launch notification agreement with Islamabad. From the outset of negotiations between the two states, Pakistan sought to include cruise missile launches in any future agreement. India balked, however, not least because prior to reaching a tentative agreement with Pakistan in August 2005, only India had tested cruise missiles. But with Pakistan's surprise launch of its own cruise missile barely a week after the tentative accord was reached, New Delhi must have begun to reconsider its shortsightedness in keeping cruise missiles out of the agreement. By April 2006, after Pakistan had successfully conducted its second flight test of its new cruise missile, India signaled its interest in bringing cruise missiles into the joint notification accord. Thus far, cruise missiles still remain outside this important regional accord, intensifying concerns about the destabilizing impact of a cruise missile arms race in South Asia.

The perception of normative differentiation between ballistic and cruise missiles also appears evident in Indian attempts to acquire cruise missile component technologies to extend the range of their nascent cruise missile programs. The impact of Pakistan's surprise cruise missile test in 2005 prompted calls in the Indian press to extend the range of the Indian BrahMos cruise missile at least to that of Pakistan's Babur, and much farther if possible. Such an extension in range, it was noted, would require access to restricted technologies from Russia, an MTCR member state. The assumption in the Indian press was that obtaining these technologies was feasible because the BrahMos cruise missile, unlike India's ballistic missiles, was not subject to the same level of international scrutiny. While there is no evidence that Russia has aided India in an extended-range version of BrahMos, Indian officials have publicly spoken of a BrahMos follow-on capable, within a decade, of 1,000km range at hypersonic speeds. Even more provocative was India's failed attempt in 2006 to flout existing MTCR guidelines by approaching the European missile giant, France-based MBDA Missile Systems, in hopes of obtaining a technology transfer arrangement and also complete cruise missile systems. The Indian press reported that the deal fell apart in last-minute negotiations, but a more likely explanation is that after respective French and Indian defense organizations reached a tentative agreement the deal was nixed by the French government in light of obvious MTCR restrictions.

South Korea's four new land-attack cruise missile programs have their origin in the weak normative basis upon which Washington attempted to constrain Seoul's ballistic missile ambitions. The agreement between Washington and Seoul that permitted Seoul to join the MTCR in 2001 constrained ballistic missiles to 300km range and 500kg payload, but gave Seoul essentially the freedom to deploy cruise missile with a range of 500km conditional on the payload remaining under 500kg. But Seoul apparently chose to interpret the agreement as having no maximum range threshold for cruise missiles. Thus, South Korea is developing four new cruise missiles with ranges between 500 and 1500km. Ironically, the U.S. objective was to avoid precipitating an Asian arms race in ballistic missiles, but the unintended consequence has been to fuel one in cruise missiles instead.

Objections to Broadening HCoC's Remit

It seems plausible that the United States, among other cruise missile manufacturing states, objected to including cruise missiles in the HCoC because they sought a free hand to sell cruise missiles to key friends and allies. However, neither does the HCoC ban possession or the sale of missiles as long as due restraint is practiced by subscribing parties. To be sure, the United States has transferred far more land-attack cruise than ballistic missiles to its allies. In the case of Tomahawk cruise missiles, thus far the United Kingdom and Spain have become recipients, while Australia might conceivably become potential future parties to such transfers. This behavior is not inconsistent with the HCoC's political commitment to exercise maximum restraint in such transfers. These decisions reflect judicious and careful choices and are consistent with U.S. national security requirements. All HCoC subscribers understand that the code's obligations do not limit them from taking such carefully considered steps to meet their national security requirements. Were cruise missiles added to the HCoC remit, the kind of normative differentiation and its unintended effects described above might be more unlikely to occur in the future.

A second and more analytical objection standing in the way of broadening the HCoC's remit relates to the presumption of uniqueness associated with ballistic missiles. Perhaps the clearest distinction made between ballistic and cruise missiles is that while the inaccuracy of ballistic missiles renders them useful only for delivering weapons of mass destruction, cruise missiles, by comparison, are weapons of great discrimination and extraordinary accuracy. Indeed, almost exclusively due to U.S. use of cruise missiles, they have become the weapon of choice for both limited retaliatory use (viz., terrorist events) and for far more substantial combined arms regional campaigns (two Persian Gulf wars, the Balkan contingencies). The truth is that ballistic missiles' accuracy is improving enough to make them useful as conventional leveraging systems to enhance the effectiveness of air forces, particularly against opposing air forces situated on vulnerable airfields. China's missile threat to Taiwan's air force is the contemporary example. Moreover, U.S. attempts to arm Trident D-5 ballistic missiles with conventional payloads attests to the prospects for using ballistic missiles in more discriminating ways. And lest we forget, while LACMs today are well suited as weapons of discrimination, they are also fully capable of delivering mass-destruction payloads, and in some cases decisively better than ballistic missiles. Pakistan's decision to arm its Babur cruise missile with a nuclear warhead illustrates the first point while the fact that cruise missiles are conservatively more effective than ballistic missiles by a factor of ten for delivering biological payloads exemplifies the second. [8]

Missile proliferation specialist Mark Smith has written that in the attempt to establish norms on missiles, states should not exaggerate the link between missiles and WMD as the foundation for control. Smith has suggested instead that we focus on the unique characteristics that distinguish missiles (meaning ballistic missiles) from other delivery systems. These would include, in Smith's view, range, speed, and low susceptibility to missile defenses, which combine to furnish strategic advantage. Improved accuracy would only add to ballistic missile's strategic advantage. [9] But a closer look at each of Smith's characteristics suggests that LACMs compare favorably with ballistic missiles. LACM range is currently ample and growing in each of three regional settings to achieve strategic impact. Although the United States is on track to develop an intercontinental range cruise missile possessing perhaps Mach 6 speed, adversary LACMs will be limited to perhaps 3,000km for the foreseeable future. Nevertheless, cruise missiles can readily achieve strategic range by means of their multiple launch possibilities. Ballistic missiles exploit their speed to achieve shock effect, but because they are subject to launch detection, effective missile defenses can compensate for speed of delivery. On the other hand, it is much more difficult to detect an LACM's launch, and because of its ability to fly low and alter its flight path into a target unpredictably, or to incorporate stealth materials to reduce its observability to radar, a land-attack cruise missile can readily achieve equivalent shock effect if not total surprise independent of its speed. That said, the speed of cruise missiles will inevitably grow as scramjet technology improves. Today's Mach 2.8 BrahMos may achieve double that speed in two decades. As for low susceptibility to missile defenses, the 2003 war in Iraq showed that while missile defenses performed admirably against ballistic missiles, they failed altogether against a small number of crude cruise missiles. [10] The perceived penetration effectiveness of cruise missiles has thus begun to resonate broadly as a compelling incentive to acquire cruise missiles.

Several more characteristics might be added to Mark Smith's list, but one is worth particular mention: that of cost. The cost advantages that land-attack cruise missiles have over ballistic missiles not only give them added appeal but also make the prospect of effective defense increasingly problematic by virtue of overwhelming saturation attacks. Importantly, too, ballistic and cruise missiles leverage each other's effectiveness by necessitating dual-mode missile defenses. Witness Iran's view that its new cruise missiles will support the effectiveness of their Shihab ballistic missiles by complicating the task of missile defenses.

By these measures, the absence of cruise missiles in the Hague Code underscores its palpably limited remit. If there is anything that the subscribing states to the Code agree upon, it is that the unconstrained proliferation of missiles undermines regional and international stability. Broadening the HCoC's scope is a modest gesture toward dealing with the new and more ominous direction that missile proliferation has just begun to take.

Recognizing the importance of broadening the Hague Code's normative treatment to include cruise missiles is a growing phenomenon. After forming in late 2003, a 14-member independent Weapons of Mass Destruction Commission, chaired by Dr. Hans Blix, deliberated for over two years to develop "realistic proposals aimed at the greatest possible reduction of the dangers of weapons of mass destruction." The commissioners included retired flag and general officers from China and India, several internationally prominent diplomats, heads of international think tanks, and former Secretary of Defense, William J. Perry. The scope of the WMD Commission's investigation included nuclear, biological, chemical, and radiological weapons and means of delivery. On WMD delivery systems, the WMD Commissioners unanimously recommended the following: "States subscribing to the Hague Code of Conduct should extend its scope to include cruise missile and unmanned aerial vehicles." [11] The Commission also recommended the creation of a multilateral data exchange on missile launches from early-warning systems, while encouraging more transparency measures and the formulation of launch notification agreements, a matter that the United States and Russia now seem bent upon achieving bilaterally. Were both states to take a leadership position on broadening the HCoC's remit, a quick consensus conceivably could develop in support of such broadening. As missile proliferation specialist Aaron Karp notes, "If it is to prosper, expanding the Hague Code of Conduct to include cruise missiles probably is inevitable, if only because so many governments want it." Given the rapid buildup of cruise missiles in regional settings like the Middle East, South Asia and longstanding mistrust about historical legacies in Northeast Asia, and the rampant missile racing on both sides now of the Taiwan straits and in South Korea, the time is ripe to make the Hague Code of Conduct relevant to the changing nature of ballistic and cruise missile proliferation.

Sources:
[1] See Mark Smith, "Pragmatic Micawberism? Norm Construction on Ballistic Missiles," Contemporary Security Policy 27, no. 3 (December 2006), p. 536 for a slightly different view on the attributes of what the HCoC would achieve.
[2] Mark Smith, "Preparing the Ground for Modest Steps: A Progress Report on the Hague Code of Conduct," Disarmament Diplomacy 72 (August-September 2003), www.acronym.org.uk. For more recent coverage on the HCoC, see Daniel Keohane, "Challenges in Missile Non-Proliferation—Multilateral Approaches: The Hague Code of Conduct against Ballistic Missile Proliferation," The EU Institute for Security Studies, 30 May 2007, www.iss.europa.eu.
[3] For the full Summit statement, www.g8italia2009.it.
[4] The U.S. and Russia also agreed to share missile early-warning data to deal with much-anticipated problems associated with the Y2K "Millennium Bug" problem. See "US and Russia Cooperate on 'Millennium Bug' Nuclear Threat," Disarmament Diplomacy 35 (March 1999), www.acronym.org.uk.
[5] "U.S. Is Confident in Future Potential of Missile Code of Conduct," this article is based on a statement issued by the U.S. State Department, November 2006, 2002, www.defense-aerospace.com.
[6] Joseph Cirincione, "The Declining Ballistic Missile Threat," Carnegie Endowment for International Peace, January 25, 2005, www.carnegieendowment.org.
[7] The developments covered in this essay are analyzed and documented in Dennis M. Gormley, Missile Contagion: Cruise Missile Proliferation and the Threat to International Security (Westport, CT: Praeger Security International, 2008).
[8] This is demonstrated though extensive modeling and simulation of biological weapon attacks. Interview with Dr. Gene McClellan, Pacific-Sierra Research Corporation, August 1997.
[9] Smith, "Pragmatic Micawberism? Norm Construction on Ballistic Missiles," pp. 539-540.
[10] Dennis M. Gormley, "Missile Defence Myopia: Lessons from the Iraq War," Survival 45, no. 4 (Winter 2003-04), pp. 61-86.
[11] See Weapons of Terror: Freeing the World of Nuclear, Biological and Chemical Arms, Synopsis, May 2006, p. 15, www.wmdcommission.org.