The HCoC and Space

While its title emphasises its focus on missiles, the Hague Code of Conduct against Ballistic Missile Proliferation (HCoC) also addresses the question of space, with Article 2f recognising that ‘states should not be excluded from utilising the benefits of space for peaceful purposes, but that, in reaping such benefits and in conducting related cooperation, they must not contribute to the proliferation of Ballistic Missiles capable of delivering weapons of mass destruction’. Based on this provision, it is therefore important to analyse and understand the links between the HCoC, outer space and ballistic missile proliferation.

As space became an area of strategic activity from the beginning of the Cold War onwards, and space technology made significant contributions to scientific knowledge, international economic competitiveness, and national and international security, an international space legal regime gradually emerged. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty), which entered into force on 10 October 1967, is the legal foundation of international space law.

While it does not define the scope of ‘outer space’, this landmark treaty acknowledges outer space as a common heritage of humankind, and forbids any state from claiming sovereignty over it. This core stipulation is enshrined in Article II of the treaty, which designates outer space a res communis omnium.1 The treaty also prohibits the placement of weapons of mass destruction (WMD) in outer space, on the Moon or on other celestial bodies. This stipulation is an acknowledgement of the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water adopted four years earlier in 1963. While the 1967 text prohibits the placement of WMD in space, conventional weapons are beyond its scope.2

As the space industry grew rapidly during the Cold War, it was inextricably linked to the development of rocket technology for military purposes. As such, the Soviet Union and the United States (US) used the German V2 missile for the conquest of space but also to found their own ballistic missile programmes. The space domain and ballistic missile systems were therefore connected from the start. This interdependence between space and ballistic missile technologies was reinforced when the Soviet Union launched the R-7 Semyorka, the world’s first intercontinental ballistic missile (ICBM), into space on 21 August 1957. In October that same year, they launched the Sputnik satellite, with a rocket derived from the R-7 Semyorka. These events were a landmark moment, as the two blocs recognised the dual purpose of launching technologies and embarked on a space and ballistic missile race.

As WMD proliferation emerged as a central security issue at the end of the Cold War, the proliferation of delivery vehicles also became an issue of concern, and brought a new focus to the dissemination of missiles but also to space launch vehicle (SLV) programmes.3 This link is acknowledged in Article 2f of the HCoC, with Article 2g further adding that ‘Space Launch Vehicle programmes should not be used to conceal Ballistic Missile programmes’.4

Although the HCoC does not replace a legally binding treaty dealing with outer space, the Code remains the only multilateral mechanism for promoting transparency regarding SLV launches and space programmes. This paper therefore seeks to understand how the transparency and confidence-building measures (CBM) enshrined in the HCoC can promote the development of peaceful space operations while preventing the proliferation of ballistic missiles. It is also important to understand how the HCoC can strengthen space security in a context of latent conflict potential, but also the democratisation of the use of outer space.

To answer these questions, this paper considers the role of the HCoC in the field of international outer space regulations and how this multilateral, politically-binding text can promote the peaceful use of space. It also analyses the existing relationships between space launchers and ballistic missiles, detailing their growing similarities but also their specific features. Finally, it examines the ability of the HCoC to adapt to the emergence of new actors and new military and commercial practices in outer space in order to avoid ballistic missile proliferation combined with a new space race.